Lubenow's Estate, In re

• Decision Date: 10 November 1966
• Docket Number: No. 8310,8310
• Citation: 146 N.W.2d 166
• Parties: In the Matter of the ESTATE of Richard LUBENOW, Deceased. Albert LUBENOW, Petitioner and Respondent, v. Fred LUBENOW, Anthony Lubenow, Oscar Lubenow, Louise Matt, Frank Lubenow, Emil Lubenow, Arnold Lubenow, Roy Lubenow, Dorothy Tenneson, Eddie Johnson, and Evelyn Polikowsky, Appellants.
• Court: North Dakota Supreme Court

Page 166

146 N.W.2d 166

In the Matter of the ESTATE of Richard LUBENOW, Deceased.

Albert LUBENOW, Petitioner and Respondent, v. Fred LUBENOW, Anthony Lubenow, Oscar Lubenow, Louise Matt,

Frank Lubenow, Emil Lubenow, Arnold Lubenow, Roy

Lubenow, Dorothy Tenneson, Eddie

Johnson, and Evelyn

Polikowsky,

Appellants.

No. 8310.

Supreme Court of North Dakota.

Nov. 10, 1966.

Syllabus by the Court

1. Where the will of the testator devises and bequeaths all of his property, and then makes a subsequent statement that no provision is being made for other relatives because the testator has given directions to the devisee in that regard and 'he will see to it,' such subsequent statement is merely an expression of a wish or a hope and does not limit the absolute character of the devise made.

2. Where there is an unconditional devise and bequest made, and precatory words are used in a subsequent portion of the will, they do not impair the absolute and unconditional devise and bequest.

3. For reasons stated herein, the order of the district court is affirmed.

Johnson, Milloy & Eckert, Wahpeton, for petitioner and respondent.

Lewis & Bullis, Wahpeton, for appellants.

STRUTZ, Judge.

Richard Lubenow died in 1953, leaving a will devising and bequeathing all of his real and personal property to a nephew, Albert Lubenow, the respondent herein. After the provisions of the will so devising and bequeathing all of his property to the respondent, he added a further clause designated as 'Third,' which clause reads as follows:

'Third: I have not made any specific bequests to my brothers and sister, nieces and other nephews, or other relatives, because I have given directions to Albert Lubenow in this regard. He will see to it that my brothers on the farm, particularly, are provided for.'

After the death of the testator, the will was presented to the county court of Richland County for probate. It was admitted as the last will and testament of the decedent, and the respondent, named as executor therein, was so appointed.

The county court held that the Third paragraph of the will set up a trust, but that it was void because its provisions were vague. When the petition of the executor for distribution of the estate under the will was presented, the court ordered that it be denied and that the estate be administered as if the decedent had died intestate, thus voiding the entire will.

An appeal was taken by Albert Lubenow from the decision of the county court, and the trial court reversed the order of the county court and ordered that the entire estate be decreed to Albert Lubenow. From this order of the district court the appellants have appealed to this court, demanding a trial de novo.

The only issue for consideration on this appeal is whether the last will and testament of the deceased Richard Lubenow was properly construed by the district court.

The order of the county court obviously cannot be sustained. The county court found that the testator, by the provisions in paragraph Third of the will, was attempting to set up a trust but that the trust was ineffective because the provisions of the trust were too vague. The provisions of paragraph Third of the will clearly do not set up a trust. All that it attempts to do is to advise that no provision has been made in the will for relatives other than Albert, 'because I have given directions to Albert Lubenow in this regard.' Not only is it vague, but it says absolutely nothing. And if the will has provisions which cannot be given effect that would not also make the valid provisions of paragraph Second of the will inoperative. Our statute specifically provides that, where there are two methods of interpreting a will, the one which will prevent total intestacy is preferred. Sec....