Keller v. Reichert

Decision Date12 July 1922
Citation189 N.W. 690,49 N.D. 74
CourtNorth Dakota Supreme Court

Rehearing denied September 9, 1922.

From a judgment of the District Court of Ward County, Moellring, J defendants appeal.


Messrs Fisk, Murphy & Nash, for appellants.

In Starkweather v. Bell, 12 S.D. 146, this statute is construed. The facts are substantially the same as in the case at bar. Judge Corson, speaking for the South Dakota court holds directly against the respondent in this case.

The following cases support the construction placed upon this statute by the South Dakota court. Bardell v. Brady, 172 Ill. 420, 50 N.E. 124; Waugh v. Moan, 20 Ill 298, 65 N.E. 713; Smith v. James, 72 Ia. 515, 34 N.W. 309; Blake v. Rourke, 74 Iowa 519, 38 N.W. 392; Goldthorp's Estate, 94 Iowa 336, 62 N.W. 845, 58 Am. St. Rep. 400; Ross v. Ross, 140 Iowa 51, 117 N.W. 1105; Rich v. Bowker, 25 Kan. 7; Tucker v. Whitehead, 59 Miss. 594; Whitehead v. Kirk (Miss.) 61 So. 737; Lewis v. Aylott, 45 Tex. 190; Watts v. Rolland, 56 Tex. 54.

Declarations of a beneficiary under the will, though made in the presence of the testator and after the execution of the will have been held to be inadmissible to show that she did not exert undue influence over the testator. Roberts v. Trawick, 22 Ala. 490; McQueen v. Wilson, 131 Ala. 606, 31 So. 94; St. Leger's Appeal, 34 Conn. 450, 91 Am. Dec. 735.

It becomes, then, upon proof that the will was written or procured to be written by a beneficiary, the duty of the proponent, in order to uphold the will, to produce evidence to remove the suspicion. Billinghurst v. Vickers, 1 Phill. Ecc. (Eng.) 187; Adams v. McBeath, 3 British Columbia 513, affirmed in 27 Can. S.Ct. 13; Dudley v. Gates, 124 Mich. 446, 86 N.W. 959, 8 Detroit Leg. N. 415, 83 N.W. 97; Miller v. Livingstone, 31 Utah 428, 88 P. 338.

Or to rebut the presumption said by many courts to be engendered by this circumstance in connection with the fact that the draftsman was a confidential agent of the testator. Lyons v. Campbell, 88 Ala. 470, 7 So. 250; Coghill v. Kennedy, 119 Ala. 658, 24 So. 459; Bancroft v. Otis, 91 Ala. 291, 8 So. 286, 24 Am. St. Rep. 904; McQueen v. Wilson, 131 Ala. 606, 31 So. 94; In re Cooper (N. J.) 71 A. 678; Yorke's Estate, 6 Pa. Dist. Ct. 326.

"Subscription by a witness to a will, made before a testator who is unconscious of the act performed before him, cannot be said to have been made 'in the presence of the devisor,' as that phrase is used in the statute." Right v. Price, 1 Dougl. 241.

The presence contemplated by the statute is not simply the bodily presence of the testator; it is essential that the testator be mentally capable of recognizing and actually conscious of the act performed by him. If this power be wanting, mere corporeal presence will not suffice. Watson v. Pipes, 32 Miss. 451; Violette v. Therriau, 17 N. B. 389; Hill v. Barge, 12 Ala. 687; Hall v. Hall, 18 Ga. 40; Orndorff v. Hummer, 12 B. Mon. (Ky.) 619; Jackson v. Moore, 14 La.Ann. 209; Etchison v. Etchison, 53 Md. 348; Aikin v. Weekerly, 19 Mich. 482; Spoonemore v. Cables, 66 Mo. 579; Vernam v. Spencer, 3 Bradf. (N. Y.) 16; Aurand v. Wilt, 9 Pa. 54; Baldwin v. Baldwin, 81 Va. 405; Chappell v. Trent, 90 Va. 849, 19 S.E. 314; Muerer's Will, 44 Wis. 392.

McGee & Goss, for respondents.

"Cases may be found where less mental capacity is needed intelligently to give effect to a purpose already formed as to the final disposition of an estate than would be necessary for ordinary business." Hutchinson v. Hutchinson (Ill.) 38 N.E. 926. And in this note to 27 L.R.A.(N.S.) page 98, under the above heading, the author cites and quotes from the above cases cited in 2 B. R. C. 41, and note, viz: McMasters v. Blair, 29 Pa. 298; O'Brien v. Dwyer, 17 A. 777; Hathorn v. King, 5 Am. Dec. 106; Clifton v. Clifton, 21 A. 333; Re Wilde, 77 N.Y.S. 164; Stevenson v. Stevenson, 33 Pa. 471, and the English cases cited above of Parker v. Delgate, L. R. 8 Prob. Div. 171, and Perera v. Perera, A. C. 354.

And in the syllabus to the case annotated, Slaughter v. Heath (Ga.) 27 L.R.A.(N.S.) page 1, the syllabus reads: "A person has testamentary capacity who understands the nature of a testament or will, viz., that it is a disposition of property to take effect after death and who is capable of remembering generally the property subject to disposition and the person related to him by the ties of blood, and of affection, and also of conceiving and expressing by words, written or spoken, or by signs, or by both any intelligible scheme of disposition. If the testator has sufficient intellect to enable him to have a decided and rational desire as to the disposition of his property, this will suffice."

See L.R.A.1915A, 452, subd. D. 5, that: "The facts that the testator, at the time of making his will, was eighty-two years old, was in his last illness, was partially paralyzed, and extremely weak, and at times flighty, and died on the morning following the execution of the will, which occurred at 2 o'clock in the afternoon, do not necessarily show testamentary incapacity." Lindsey v. Stephens, 229 Mo. 600, 129 S.W. 641.

And the principal case annotated--that of Re MacCrellish, 167 Cal. 711, 141 P. 257, L.R.A. 1915A, 443, from the syllabus we quote: "That one is occasionally in a sort of stupor, forgets what she is talking about, denies ownership of property when what she possesses is disappointing and not very remunerative, and that she has hallucinations that men are hiding near her, spying on her, and wishing to rob her, do not show absence of testamentary capacity."

CHRISTIANSON, J. BIRDZELL, Ch. J., concurs, ROBINSON, J. (concurring specially). BRONSON, J., GRACE, J., (dissenting).



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 24th, 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 23rd, 1920, and the other on February 24th, 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 the respondent, and in compliance with this request, the physician, on February 23d, 1920, wrote her as follows: "Minot, N.D. Feb. 23, 1920. Miss Keller: Joe Reichert 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 24th, 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 on the morning of February 24th, 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 practised 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 her the correct one. It is contended, however, that her testimony was inadmissible under § 7871, Comp. Laws, 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...

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