Keller v. Reichert

• Decision Date: 09 September 1922
• Citation: 189 N.W. 690,49 N.D. 74
• Parties: KELLER v. REICHERT et al.
• Court: North Dakota Supreme Court

49 N.D. 74

189 N.W. 690

KELLER

v.REICHERT et al.

Supreme Court of North Dakota.

July 12, 1922.

On Petition for Rehearing, Sept. 9, 1922.

Syllabus by the Court.

Section 7871, Comp. Laws 1913, which provides that in a civil action or proceeding by or against executors, administrators, heirs at law or next of kin, in which judgment may be rendered or ordered entered for or against them, neither party shall be allowed to testify as to any transaction whatever with or statement by the testator or intestate, unless called to testify thereto by the opposite party, is not applicable in proceedings for the probate or contest of a will.

Section 5680, Comp. Laws 1913, which provides that “all beneficial devices, legacies, or gifts whatever made or given in any will to a subscribing witness thereto are void unless there are two other competent subscribing witnesses to the same,” applies only to subscribing witnesses to the will.

For reasons stated in the opinion, it is held that questions of fraud and undue influence were for the jury.

Appeal from District Court, Ward County; Moellring, Judge.

Action by Mary Keller against Peter Reichert and others. From a judgment admitting will to probate, defendants appeal. Affirmed.

Bronson and Grace, JJ., dissenting.Fisk, Murphy & Nash and John J. Coyle, all of Minot (Russell, Madeen & Clarke, of Missoula, Mont., of counsel), for appellants.

McGee & Goss, of Minot, for respondent.

CHRISTIANSON, J.

This is an appeal from a judgment of the district court of Ward county admitting a will to probate. The facts necessary to a proper understanding of the questions presented on the appeal will be briefly stated: On February 24, 1920, one Joseph Reichert died at St. Joseph's Hospital in the city of Minot, in this state, leaving certain real and personal property.. He also left two wills, one signed on February 23, 1920, and the other on February 24, 1920. The will admitted to probate by the judgment appealed from is the second will. The deceased was an unmarried man, and left surviving him a brother and four sisters. The respondent in this case claims, and the evidence adduced by her upon the trial is to the effect, that she and the deceased were engaged to be married, and that the date of the marriage had been fixed for some time in April, 1920. Under the first will Reichert left $100 to his priest for masses for his soul; $500 to St. Leo's Church; $500 for the education of worthy Catholics to the priesthood; and $200 to the respondent, Mary Keller; the remainder of his property to be divided equally among his brother and sisters. Under the second will he left $100 to his priest for masses for his soul, and left all of his real property to the respondent, Mary Keller. No provision was made for the distribution of the personal property; hence the same, according to the law of succession of this state, would be distributed among the brother and sisters.

There is no question that Joseph Reichert was a very sick man both at the time he executed the first and the second will. He had received the last sacrament before he executed the first will. After he had made the first will be asked one of his attending physicians to write to the respondent, and in compliance with this request, the physician, on February 23, 1920, wrote her as follows:

“Minot, N. D. Feb. 23, 1920. Miss Keller: Joe Riechert is very sick with pneumonia, and he wants you to come on first train. He is in St. Joseph's hospital in Minot. [Signed] Dr. A. Carr.”

Thereafter, on February 24, 1920, at his request the following telegram was sent to her:

“Joseph Reichert seriously ill at St. Joseph's hospital. Come at once. St. Joseph's Hospital.”

She received both the telegram and the letter the morning of February 24, 1920, and took the first train to Minot. The train was late, and she did not arrive until about 4 o'clock in the afternoon. She at once went to Reichert's room in the hospital. He informed her that he had made a will, and, according to her testimony, stated that he wanted to change the will which he had made, and she, in accordance with his request, went down town and had the second will prepared. The second will was prepared by the same attorney who prepared the first one. The execution of the second will is attested by the two attending physicians. There is square conflict in the evidence both as to the mental condition of the testator and the conditions surrounding the execution of the second will. There is no question, however, but that the signature attached to the will was written by the testator. The serious questions in this case are whether the will was executed as the result of fraud or undue influence practiced or exercised by Mary Keller, and whether at the time he signed the will the testator had mental capacity to do so. These questions involve a consideration of the competency and probative force of the testimony of the respondent, Mary Keller. If her testimony was competent, and if the facts are as she purported to detail them, then the will in controversy here is valid, and the judgment appealed from here the correct one. It is contended, however, that her testimony was inadmissible under section 7871, C. L. 1913, which prohibits a party in any “civil action or proceeding by or against executors, administrators, heirs at law or next of kin in which judgment may be rendered * * * for or against them” from testifying “as to any transaction whatever with or statement by the testator or intestate, unless called to testify thereto by the opposite party.”

It is further contended that the testimony of the respondent was incompetent under section 5680, C. L. 1913, which provides that-

“All beneficial devises, legacies or gifts whatever made or given in any will to a subscribing witness thereto are void, unless there are two other competent subscribing witnesses to the same.”

It is further contended that the respondent failed to sustain the burden of proof; that this court should say as a matter of law that the testator was without mental capacity to make a will, and that there was no legal publication of the will. These propositions will be considered in the order stated.

[1] The first question presented for determination is whether section 7871, C. L. 1913, inhibited the respondent, Mary Keller, from testifying with respect to the preparation, signing, and publication of the will in question. That section so far as material here reads as follows:

“No person offered as a witness in any action or proceeding in any court, or before any officer or person having authority to examine witnesses or hear evidence, shall be excluded or excused by reason of such person's interest in the event of the action or proceeding, or because such person is a party thereto, or because such person is the husband or wife of a party thereto, or of any person in whose behalf such action or proceeding is commenced, prosecuted, opposed or defended, except as hereinafter provided. * * * 2. In civil action or proceeding by or against executors, administrators, heirs at law or next of kin in which judgment may be rendered or ordered entered for or against them, neither party shall be allowed to testify against the other as to any transaction whatever with or statement by the testator or intestate, unless called to testify thereto by the opposite party; and where a corporation is a party in proceedings mentioned in this section, no agent, stockholder, officer or manager of such corporation shall be permitted to testify to any transaction had with the testator or intestate.”

After a careful consideration of this question, we are of the opinion that this statute did not render Miss Keller's testimony inadmissible. The general policy of the statute is to make all persons competent witnesses in all actions and proceedings in any of the courts of this state. There are certain exceptions to this general policy which are enumerated in the statute. The only way in which we can ascertain the scope of the exceptions is to look beyond such language, and enlarge the exception which the lawmakers have prescribed. St. John v. Lofland, 5 N. D. 140, 143, 64 N. W. 930.

The statute by its express terms applies only to a “civil action or proceeding by or against executors, administrators, heirs at law or next of kin in which judgment may be rendered or ordered entered for or against them.” Mowry v. Gold Stabeck Co. et al. (N. D.) 186 N. W. 865. The probate of a will clearly does not come within the terms of the statute. That is not a claim or demand which arose out of any transaction with the testator during his lifetime, existing at his death, and which might be enforced against him if living, and which his executors, administrators, heirs at law or next of kin are compelled to prosecute or defend in his place. That is a judicial inquiry whether the instrument before the court is the last will and testament of the deceased, and entitled to be admitted to probate as such. 40 Cyc. 2266; 28 R. C. L. p. 510; note, Ann. Cas. 1914A, 982.

[2] Much of what has been said with respect to section 7871, supra, is also applicable to section 5680, C. L. 1913. That section by its terms applies only to “a subscribing witness” to the will. The respondent, Mary Keller, was not a subscribing witness. Hence the section does not apply. Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73, 28 L. R. A. (N. S.) 270, 136 Am. St. Rep. 110, 20 Ann. Cas. 214. See, also, Mackin v. Mackin, 37 N. J. Eq. 528.

There is some conflict in the authorities as to the force of the implication resulting from the fact that one who is a beneficiary under the will is active in procuring the execution thereof. The various authorities dealing with this question are collated in a note appended to Kirby v. Sellards, 28 L. R. A. (N. S.) 270. See, also, 28 R. C. L. p. 144. It is unnecessary to determine which line of authorities should be followed in this state, for the court in its instructions...