Lyons' Estate, In re, 7363

• Decision Date: 27 May 1953
• Docket Number: No. 7363,7363
• Citation: 58 N.W.2d 845,79 N.D. 595
• Parties: In re LYONS' ESTATE. KNUDSEN v. LYONS et al.
• Court: North Dakota Supreme Court

Page 845

58 N.W.2d 845

79 N.D. 595

In re LYONS' ESTATE KNUDSEN v. LYONS et al.

No. 7363.

Supreme Court of North Dakota.

May 27, 1953.

Syllabus by the Court.

1. No will is valid unless executed according to the provisions of the laws of North Dakota or according to the law of the place in which it was made, or in which the testator at the time was domiciled. NDRC 1943, 56-0307.

2. Every will, other than a nuncupative will, must be in writing. NDRC 1943, 56-0301.

3. A nuncupative will is not required to be in writing nor to be declared or attested with any formalities. To make it a valid will and to entitle it to be admitted to probate, the folowing requisites must be observed: 1. The estate bequeathed must not exceed in value the sum of one thousand dollars; 2. It must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testator at the time to bear witness that such was his will, or to that effect; 3. The decedent, at the time, a . Must have been in military service in the field in actual comtemplation, fear, or peril of death, or b. Doing duty on shipboard at sea in actual contemplation, fear, or peril of death, or c. Must have been in expectation of immediate death from an injury received the same day. NDRC 1943, 56-0303.

4. An olographic will is one that is entirely written, dated, and signed by the hand of the testator himself. NDRC 1943, 56-0304.

5. Every will, other than an olographic and a nuncupative will, '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.' NDRC 1943, 56-0302.

6. A rehearing may be granted in the county court and a decree or order vacated on the grounds, among others, of '1. Mistake, inadvertence, surprise, or excusable neglect of the party making the application;' and '2. The nonexistence of any fact necessary to jurisdiction.' NDRC 1943, 30-0308.

7. The jurisdiction of the county court does not extend to the determination of the rights in property left by a deceased, where such right does not depend upon heirship or will but upon contract. So far as wills are concerned, the jurisdiction of the county court is one to determine whether a will that is offered for probate has been executed and attested in the manner required by statute, by a person who at the time had testamentary capacity, and that such person had exercised his right to make a will without being unduly influenced by others.

8. A petition for the proof and probate of a will which shows affirmatively that the alleged will which is offered for probate was not subscribed by the testator himself, or that some person in his presence, and by his direction, subscribed his name thereto, fails to set forth facts for the probate of a will; and shows the nonexistence of facts necessary to the jurisdiction of the county court, and a decree admitting such alleged will to probate must be set aside upon the petition for rehearing of a party interested in the estate of the decedent. The fact that the party who petitions for a rehearing was one of the signers of the petition for proof and probate of the alleged will does not estop such party from making and presenting such petition for rehearing.

Daniel S. Letnes, Grand Forks, for appellants.

Philip R. Bangs, Grand Forks, for respondent.

CHRISTIANSON, Judge.

This controversy originated in the County Court of Grand Forks County and involves a proceeding for the probate of a will. The material facts are as follows: On November 21, 1950, James W. Lyons, Jr., Jean Maude Lyons, Ethel Ann Knudsen, Marguerite G. Hvidston and Hazel L. Franz filed with the County Court of Grand Forks County in this state a petition denominated 'Petition for Proof and Probate of Will.' Said James W. Lyons, Jr., Jean Maude Lyons, Ethel Ann Knudsen, Marguerite G. Hvidston and Hazel L. Franz were also named as respondents. According to the allegations of the petition the petitioners and respondents were the son and daughters of and all the heirs at law of James William Lyons, deceased. In the petition it was alleged that said James William Lyons died on or about November 15, 1950, and was at the time of his death a resident of the City of Grand Forks, State of North Dakota, and that said decedent 'left a Last Will and Testament which is herewith presented in this Court for probate; that your petitioners are all of the children of said decedent, all of the legatees and devisees in said Last Will and Testament.' The instrument referred to and designated as the Last Will and Testament of said James William Lyons, deceased, is dated January 2, 1945, and is made a part of the petition. It is further alleged that said Last Will and Testament was prepared in accordance with the specific instructions of the decedent and in accordance with his wishes. That the same was prepared by respondent Hazel L. Franz, one of his daughters, prior to January 2, 1945, but that the decedent did not sign such instrument at the time it was prepared. That the instrument is dated in the handwriting of the decedent and 'witnessed apparently by Norman Nelson and Frank Penwarden whose signatures appear affixed to such instrument; that through apparent oversight the decedent neglected to sign the will in his own handwriting but that said identical Will and Testament was found in the decedent's safety deposit box' in a bank at Grand Forks after his death. It is stated in the petition that the petitioners petition and request the court to construe such instrument as the Last Will and Testament of said decedent and to give effect to all of its terms and provisions and that the petitioners individually and jointly waive any and all defects and irregularities contained in said Last Will and Testament dated January 2, 1945, insofar as the execution thereof does not comply with the laws of wills and succession of the State of North Dakota and agree to abide by all of its terms and provisions and not object to a final decree if and when the same shall be entered. On the same day that the Petition for Proof and Probate of Will was filed with the County Court of Grand Forks County the county court apparently received the testimony of the two attesting witnesses on blank forms entitled 'Proof of Will.' Such testimony was signed by the respective witnesses and sworn to before the judge of the county court. Such testimony was taken on a printed form and the words in such form stating that the instrument was 'signed, sealed, executed' by the said James William Lyons were stricken out so that the testimony is merely to the effect that on the 2nd day of January, 1945, the said instrument was acknowledged, published and declared by the said James William Lyons, deceased, to be his Last Will and Testament. The instrument denominated Last Will and Testament of James William Lyons was not signed by the decedent or by anyone on his behalf. The instrument was unsigned and the allegations in the petition 'for proof and probate of will' show affirmatively that it was not signed or executed by said decedent. On the same day that the petition for 'Proof and Probate of Will' was filed with the county court, namely on November 22, 1950, the county court executed a certificate of probate reciting that the instrument was duly proved before the county court and admitted to probate by said court as the Last Will and Testament of said James William Lyons, deceased, and on the same day the county court also issued letters testamentary to the respondent James W. Lyons, Jr. On February 13, 1951, petitioner Ethel Ann Knudsen filed with the county court a document entitled Petition for Rehearing dated February 10, 1951, praying that upon due notice and citation a rehearing be granted the petitioner and that upon such rehearing 'the Order and Decree Admitting Will to Probate be set aside, vacated, and annulled.'

The first ground set forth in the petition for a rehearing why the order and decree admitting the will to probate should be set aside, vacated and annulled is as follows:

'1. That the pretended will as admitted to probate was not and did not purport to have been signed or subscribed by the testator; that the witnesses thereto did not testify that the said instrument was signed or subscribed by the deceased, but testified only that it was published and declared by him to be his last will and testament; that there was before the Court no evidence of any nature that said will was signed, subscribed or otherwise authenticated by the decedent; and that in the absence of any subscription and competent evidence thereof, there was no will, as that term is defined by law, before the Court, and the Court was therefore without jurisdiction to admit the said instrument to probate as the last will and testament of deceased.'

A hearing was had upon the petition for a rehearing at which the parties introduced evidence. On March 5, 1951, the county court entered its order dismissing the petition for a rehearing. On March 14, 1951, the petitioner Ethel Ann Knudsen appealed to the district court from the order of the county court dismissing the petition for a rehearing. When the matter came on to be heard before the district court, the respondents on such appeal objected to the jurisdiction of the district court to hear and determine the appeal on the grounds that Ethel Ann Knudsen by joining in and filing the petition for Proof and Probate of Will conferred jurisdiction upon the County Court of Grand Forks County to admit the will to probate and that the appellant is estopped from appealing...