Kroschel v. Drusch
| Decision Date | 16 November 1917 |
| Docket Number | 20,550 |
| Parties | JOHANNA KROSCHEL v. HENRIETTA DRUSCH |
| Court | Minnesota Supreme Court |
Johanna Kroschel petitioned the probate court for Brown county for the allowance of the last will and testament of Leo Drusch, deceased. Henrietta Drusch filed objections to the allowance of the will. From the order of the probate court denying the application for probate, Johanna Kroschel appealed to the district court for that county. The appeal was heard before Olsen, J., who made findings and reversed the judgment of the probate court. From the order of reversal Henrietta Drusch appealed. Affirmed.
Will -- undue influence -- finding sustained by evidence.
1. Will contest. The evidence sustains the finding of the trial court that the will was not procured by undue influence.
Will -- definition of attestation.
2. Attestation is the act of witnessing the execution of an instrument and subscribing the name of the witness in testimony of such fact.
Will -- knowledge of witnesses.
3. It is not necessary that attestation be formally requested by the testator. Whether it is necessary that the witnesses should know that the document is a will is not decided.
Will -- finding of attestation -- evidence sufficient.
4. There is evidence that when one of the witnesses was called he was told that he was to witness a testament, that he saw the testator and the other witness sign, and was told, in the conscious presence of the testator and within his hearing, that the instrument was the testator's will and he was asked to sign it as a witness, and that he then did so. This evidence was sufficient to sustain a finding of attestation under any definition of that term.
Alfred W. Mueller, for appellant.
Albert Hauser, for respondent.
Leo Drusch was an unmarried man of middle age. He had for some years employed his time either renting farms or working on farms for hire and had accumulated above $3,000 worth of property. He had a small house in Sleepy Eye. His mother, nearly 75 years old, lived in this house, and Drusch made his home there when not at work. His other relatives were a sister, Mrs. Kroschel, a woman of some means and married to a wealthy farmer, a brother, Albert, and seven children of a deceased sister. In June, 1916, Drusch discovered that he had an incurable disease. While in a hospital at Springfield, he himself wrote out a document which he supposed would direct the disposition of his property after his death. By its terms he indicated a wish that his mother inherit all his property. Later, and on July 6, Drusch was taken to his home in Sleepy Eye. His mother was there and his sister was there much of the time. On July 10 Mrs. Kroschel and her husband went to the office of Mr. Hauser, a lawyer in Sleepy Eye, and told him Drusch wanted a will drawn. Hauser asked if they knew the terms and was told he wanted to leave his property to his mother for life with remainder to Mrs. Kroschel. Hauser drew the will accordingly and took it to the Drusch home. There is evidence that Hauser fully explained the will to Drusch in the presence of his mother and the Kroschels and that Drusch said that was the way he wanted it. Hauser then told them that another witness was needed. Some one suggested a neighbor, Mr. Zimmermann, and he was called. All being present, Drusch, sitting up in bed, signed the will and Hauser and Zimmerman signed as witnesses. Testator's mother contested the will. The trial court sustained the will. Contestant appealed.
1. It is conceded that deceased had sufficient mental capacity to make a will. Claim is made that the will was procured by undue influence exerted by Mrs. Kroschel and her husband. The trial court found that it was not. Undue influence which will avoid a will must be influence so exercised as to destroy the free agency of the testator and control the disposition of the property. In re Timothy Hess' Will, 48 Minn. 504, 51 N.W. 614, 31 Am. St. 665. The contested will evidenced a change of purpose on the part of deceased, the effect of which was to enlarge the rights of his sister, to diminish the interest of his mother and to cut off his brother and his deceased sister's children from all enjoyment of his property, even after his mother's death. It is true that the sister and her husband were much with deceased, and called the lawyer who drew the will and the witnesses who witnessed it. On the other hand, there is evidence, from which the court might find that the mother was acquainted with what was going on and acquiesced. There is also evidence that deceased had an intelligent purpose of placing his property beyond the reach of his brother. The evidence that there was any undue influence is entirely circumstantial and by no means conclusive. The finding of the trial court on this point is sustained.
2. A more serious question is the question whether the will was attested as required by law. The statute requires that a will must be "attested and subscribed in his presence by two or more competent witnesses." G.S. 1913, § 7250. This will was properly subscribed by the two witnesses but was it "attested" by them? The trial court found that it was. No question is raised as to the sufficiency of the attestation so far as Hauser is concerned. The contention is that there was no attestation by Zimmermann.
Attestation is the act of witnessing the execution of an instrument and subscribing the name of the witness in testimony of such fact. 4 Cyc. 888; Burrill, L. Dict. International Trust Co. v. Anthony, 45 Colo. 474, 101 P. 781, 22 L.R.A. (N.S.) 1002, 16 Ann. Cas. 1087; 6 C.J. 553; White & Co. v. Magarahan, 87 Ga. 217, 219, 13 S.E. 509. "To constitute a legal and valid attestation the testator must either sign the...
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