Pederson v. Christofferson
| Decision Date | 20 April 1906 |
| Docket Number | 14,562 - (11) |
| Citation | 106 N.W. 958,97 Minn. 491 |
| Parties | OLE PEDERSON and Others v. MARI HANSDATTER CHRISTOFFERSON |
| Court | Minnesota Supreme Court |
An instrument purporting to be the last will of Hans Pederson deceased, having been admitted to probate by the probate court for Watonwan county over the objections of Mari Hansdatter Christofferson, natural daughter of the deceased she appealed to the district court for that county. The case was tried before Lorin Cray, J., who found in favor of contestant, and directed that the order of the probate court be reversed. From an order denying a motion for a new trial Pederson and others, the proponents of the will, appealed. Affirmed.
Election of Remedies.
This case involves a contest as to the validity of a will. Held, where a party has a right to choose one of two or more appropriate, but inconsistent, remedies, and with full knowledge of all of the facts and of his rights makes deliberate choice of one of them, he is bound by his election, and is estopped from again electing and resorting to the other remedy.
Estoppel.
The doctrine of election of remedies differs from that of estoppel in its broadest sense, in that the party invoking it need not show that he will suffer some material disadvantage, unless his adversary be required to abide by his election.
Will -- Inconsistent Positions of Proponent.
The respondent herein filed a petition in the probate court for the probate of the will. On the day appointed for the hearing the appellants appeared and moved to dismiss the petition. The motion was denied, and the hearing adjourned to enable the appellants to offer proof of the will. On the adjourned day the respondent filed objections to the allowance of the will, and the appellants appeared in support of the will. The contest was tried in the probate court without objection by any one, and resulted in an order admitting the will to probate. The respondent appealed from the order to the district court. The appellants, when the case was called for trial in the district court, moved to dismiss the appeal, because the respondent had elected to take under the will and was estopped to contest it. Held, that the appellants were estopped from raising the question for the first time in the district court.
Acknowledgment of Natural Child.
The writing whereby the father of an illegitimate child acknowledges himself to be the father of such child, as provided by section 4473, G.S. 1894, need not be made for the express purpose of acknowledging the paternity of the child. It is sufficient compliance with the statute if the acknowledgment be made in any written instrument, collateral or otherwise, signed by the father in the presence of a competent witness, in which he clearly and specifically acknowledges that he is the father of the child. The writing here in question is sufficient to establish the heirship of the respondent.
Evidence.
The finding of the trial court to the effect that the writing purporting to be the will of the testator was not signed by him, nor by any person in his presence by his express direction, is sustained by the evidence.
Conversation Between Party and Decedent.
A party to an action or interested in the event thereof is not competent to testify to conversations with or admissions of a deceased party had with or made to a third party in his presence.
J. E. Haycraft, Frank Clague, and Somerville & Olsen, for appellants.
Edward C. Farmer and W. S. Hammond, for respondent.
On March 18, 1904, the respondent herein, hereafter designated the contestant, filed in the probate court of the county of Watonwan, this state, her petition, wherein it was stated that Hans Pederson, who was at the time of his death a resident of the county, died on March 2, 1904, leaving an estate in the county and a last will and testament, as she was informed and believed, and that she was the daughter of the deceased and a legatee under the will. The petition also set out the name, age, and residence of the respective heirs and legatees, so far as known, with the probable value, $25,000, of the estate of the deceased, and concluded with the prayer that letters of administration of the estate with the will annexed be granted to her and a third party, naming him. The will was at this time in the possession of the probate court.
The court, on filing this petition, ordered that it be heard April 21, 1904, when all the persons interested might appear for or contest the probate of the will. On the day named for such hearing the appellants herein, hereafter designated the proponents, appeared and moved the court to dismiss the petition and vacate the order for hearing thereon, on the ground that the petition did not ask to have the will probated. The court denied the motion. On the application of the proponents, to enable them to offer proof of the will and to file objections to the granting of letters to the contestant, the hearing was then adjourned to April 29, 1904. On the day to which the hearing was adjourned the proponents appeared in support of the will, and the contestant appeared and filed written objections to the probate thereof, which were to the effect that the contestant was the daughter and heir at law of the deceased; that the will was not at the time of its purported execution, or at all, properly and lawfully executed as required by law; that the deceased was not at the time of the purported execution of the will of sound and disposing mind, and had not legal capacity to make a valid will; and that its purported execution was obtained by undue influence. No objection was made by the proponents, or by any one else, to the filing of the objections by the contestant or to her appearing and contesting the will. The probate court, after a full hearing and consideration of the evidence, on May 5, 1904, determined and adjudged that the instrument in question, which was dated June 8, 1889, was the last will and testament of the deceased, and that it be admitted to probate. The court on the same day, with the consent of the proponents and the contestant, appointed E. L. Gove and D. G. D'Evelyn administrators with the will annexed. The contestant appealed from the order allowing the will to the district court of the county of Watonwan. All of the parties were represented by counsel in the proceedings in the probate court.
When the cause was called for trial in the district court, on May 23, 1905, the proponents made a motion to dismiss the appeal on the grounds:
First, that it appears from the records herein and by an affidavit filed that the plaintiff is in fact the proponent of the will in question, and that the appellant petitioned the probate court for the probating of the will in question, and she is therefore estopped from thereafter contesting the same.
Second, on the ground that the appellant is not a party in interest, and has no interest in the estate of Hans Pederson, deceased, except as a devisee in the will.
The motion was denied, and the proponents excepted to the ruling. The cause was then tried upon the merits by the court without a jury, and findings of fact made to the effect following: Hans Pederson, the alleged testator, died March 2, 1904, leaving, him surviving, a daughter, the contestant. She was the child of an unmarried woman, and was not born in lawful wedlock; but on February 15, 1887, by an instrument in writing, duly signed and acknowledged by her father, Hans Pederson, in the presence of competent witnesses, he acknowledged himself to be the father of the contestant. He left, him surviving, no widow, nor any other heir, except the contestant. The instrument purporting to be his will was not signed by him nor any person in his presence by his express direction, and it is not his last will and testament. As a conclusion of law the court directed judgment to be entered for the contestant, reversing the order appealed from.
Thereupon the proponents made a motion to amend the findings of fact by adding thereto the following: "That said Hans Pederson, deceased, was of full age, and of sound mind and memory, at the time said instrument in writing, bearing date June 8, 1889, and purporting to be the last will and testament of said Hans Pederson, deceased, was executed." The court made its order denying the motion.
The proponents also made a motion for a new trial, which was denied. They appealed from the order denying their motion for a new trial, and also from the order denying their motion for amended findings. This last order is not appealable. Rogers v. Hedemark, 70 Minn. 441, 73 N.W. 252. Nor is the proposed amendment material, if the evidence sustains the facts found by the trial court. The question, then, here to be considered, is whether the trial court erred in denying the proponents' motion for a new trial.
1. The first contention of the proponents to be considered is that the contestant elected to take under the will and is estopped from contesting it. Briefly stated, the claim of the proponents is that the contestant was at liberty either to institute proceedings for the probate of the will or to contest it, but she could not do both, and, having elected to institute proceedings for the probate of the will, she is estopped from changing her position. This presents the question of election of remedies, not an election under the will; for, if the will be valid, the contestant would, upon its being probated, take as legatee although she may have contested the will. In re Van Norman, 41 Minn. 494 43 N.W. 334. The general rule as to the election of remedies is that, where a party has a right to choose one of two or more appropriate, but inconsistent, remedies, and with full knowledge of...
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