Peterson's Estate, In re

• Decision Date: 31 March 1950
• Docket Number: No. 35108,35108
• Citation: 230 Minn. 478,42 N.W.2d 59,18 A.L.R.2d 910
• Parties: , 18 A.L.R.2d 910 In re PETERSON'S ESTATE. PETERSON et al. v. HOVLAND.
• Court: Minnesota Supreme Court

Page 59

42 N.W.2d 59

230 Minn. 478, 18 A.L.R.2d 910

In re PETERSON'S ESTATE.

PETERSON et al. v. HOVLAND.

No. 35108.

Supreme Court of Minnesota.

March 31, 1950.

Syllabus by the Court.

1. Although the general rule is that a contract executed in violation of a statute which imposes a prohibition and a penalty for the doing of an act--such as the pursuit of an occupation, business, or profession without being possessed of a license as required by law for the protection of the public--is void, such rule is not to be applied in any particular case without first examining the statute as a whole to find out whether or not the legislature so intended.

2. The distinction between acts which are Malum in se and those which are merely Malum prohibitum is no longer controlling in this jurisdiction in determining the validity of an instrument executed in violation of statute.

3. If an act is expressly forbidden and a penalty is imposed for a violation, the intent of the legislature is the controlling factor in determining to what extent, in order to preserve the requirements of public policy, contracts and other instruments made in connection with such act of violation are to be held illegal, if at all.

4. An inference of invalidity does not necessarily follow from the fact that a statute prescribes a penalty.

5. Where a statute specifically prohibits and penalizes a certain act by the members of one class, for the protection of the members of another class, a statutory construction should not be adopted which attributes to the legislature an intent to bring about a consequence that is inconsistent with the protective purpose for which the law was enacted.

6. Where the legislature has carefully designated the Offense, the Offender, and the Penalty and Has made specific provisions to insure enforcement, the inference is that the legislature has dealt with the subject completely and did not intend, in addition thereto, that drastic consequences of invalidity should be visited upon the victim of the offender by mere implication.

7. No decision has authoritative value beyond the proportions established by its controlling facts.

8. A will does not become invalid and void by reason of the sole fact that it was drawn for the testator--when no emergency existed which left insufficient time to have it drawn and its execution supervised by a licensed attorney at law--by a layman in direct violation of M.S.A. § 481.02, which prohibits and penalizes as a misdemeanor the act of an unlicensed practitioner in preparing a will for another.

Moonan, Moonan & Friedel, Waseca, for appellants.

Peterson & Peterson, albert Lea, for respondent.

MATSON, Justice.

Appeal from a district court judgment affirming an order of the probate court allowing decedent's last will and testament.

Peter H. Peterson, decedent, on September 7, 1948, which was several weeks prior to his death, executed his last will and testament, which, upon his request, had been drawn by the cashier of the Twin Lakes State Bank, a layman, who had never been admitted to the practice of law. The trial court specifically found that at the time the will was drawn 'no emergency existed nor had the imminence of death left insufficient time to have this Will drawn and its execution supervised by a licensed attorney at law.'

Appellants are heirs at law for whom no provision was made in the will. The only issue raised is whether a will which is otherwise valid is invalid and should be given no legal effect by reason of the Sole fact that it was drawn by a layman--who at the time the will was drawn was not admitted and licensed to practice as an attorney at law--in direct violation of M.S.A. § 481.02, which provides:

Subd. 1. 'It shall be unlawful for any person or association of persons, except members of the bar of Minnesota admitted and licensed to practice as attorneys at law, * * * For or without a fee or any consideration, to prepare, directly or through another, for another person, * * * any will or testamentary disposition or instrument of trust serving purposes similar to those of a will, * * *.' ¹ (Italics supplied.)

Subd. 8. 'Any person or corporation, or officer or employee thereof, violating any of the foregoing provisions Shall be guilty of a misdemeanor; and, upon conviction thereof, shall be punished as by statute provided for the punishment of misdemeanors. It shall be the duty of the respective county attorneys in this state to prosecute violations of this section, * * *.

'In lieu of criminal prosecution above provided for, such county attorney or the attorney general may, * * * proceed by injunction suit against any violator of any of the provisions above set forth to enjoin the doing of any act or acts violating any of said provisions.' (Italics supplied.)

Does it follow that the will itself is tainted with such illegality as to be void by reason of having been drafted in a prohibited manner? Did the testator, in employing an unlicensed layman, so participate in the performance of a crime that his attempt to make a will resulted in a nullity? In considering the issue, it should be borne in mind that the direct violator of the statute, the unlicensed scrivener, is not a beneficiary under the will and is not a party to this litigation. He is in no manner seeking a fee for his services or any other benefit from his unlawful act. In other words, we are not asked to aid the wrongdoer himself. See, 5 Williston, Contracts (Rev.Ed.) § 1630; Bosshard v. County of Steele, 173 Minn. 283, 217 N.W. 354; Goodrich v. N.W. Tel. Exch. Co., 161 Minn. 106, 201 N.W. 290. A different situation arises where an unlicensed practitioner seeks to recover fees for his performance of legal services. See, Annotations, 4 A.L.R. 1087 and 42 A.L.R. 1228; Gionti v. Crown Motor Freight Co., 128 N.J.L. 407, 26 A.2d 282.

In most instances, decisions concerned with the validity of instruments executed in violation of a statute involve the issue of the enforceability or nonenforceability of contracts. Where an attempt is made to enforce a contract which was made in violation of a statute, many considerations enter which are not present where the validity of a will is assailed on the sole ground that it was drawn by an unlicensed scrivener. Nevertheless, the contract cases are illustrative of certain fundamental principles which are controlling. See, 5 Williston, Contracts (Rev.Ed.) § 1630.

1-2-3-4. Although the general rule is that a contract executed in violation of a statute which imposes a prohibition and a penalty for the doing of an act--such as the pursuit of an occupation, business, or profession without being possessed of a license as required by law for the protection of the public--is void, such rule is not to be applied in any particular case without first examining the statute as a whole to find out whether or not the legislature so intended. ² It is not an arbitrary rule which is applicable to all instruments executed in violation of statutory prohibitions. Its applicable scope coincides with the reason for its existence, and when that reason ceases the rule itself ceases to have a basis and becomes inoperative. See, Webster v. U.S.I. Realty Co., 170 Minn. 360, 363, 212 N.W. 806, 807; cf. Restatement, Contracts, §§ 598--604. In construing such a statute, the inference is that the legislature did not intend that an instrument executed in violation of its terms should be void unless that be necessary to accomplish its purpose. Barriere v. Depatie, 219 Mass. 33, 106 N.E. 572. Usually the rule that a contract so made is void finds application where the acts or things prohibited by statute are Malum in se, in that they are by their nature iniquitous and void. Laun v. Pacific Mut. Life Ins. Co. of California, 131 Wis. 555, 111 N.W. 660, 9 L.R.A.,N.S., 1204; Walter A. Wood Mowing & Reaping Machine Co. v. Caldwell, 54 Ind. 270, 23 Am.Rep. 641. No longer, however, is the distinction between acts which are Malum in se and those which are merely Malum prohibitum controlling in this jurisdiction in determining the validity of an instrument executed in violation of a statute. Holland v. Sheehan, 108 Minn. 362, 122 N.W. 1, 23 L.R.A.,N.S., 510, 17 Ann.Cas. 687; 2 Dunnell, Dig. & Supp. § 1868. Where contracts or other instruments which are merely Malum prohibitum have been made in violation of statutory provisions-- as in the instant case--they may or may not be void. ³ Generally speaking, a contract is not void as against public policy unless it is injurious to the interests of the public or contravenes some established interest of society. On the other hand, contracts are contrary to public policy if they clearly tend to injure public health or morals, the fundamental rights of the individual, or if they undermine confidence in the impartiality of the administration of justice. See, Solomon v. Dreschler, 4 Minn. 278 (Gil. 197); 2 Dunnell, Dig. & Supp. § 1870. These general principles are of little direct aid in a specific case and are but reflections of what the legislature has usually declared public policy to be. Primarily, it is the prerogative of the legislature to declare what acts constitute a violation of public policy and the consequences of such violation. Mathison v. Minneapolis St. Ry. Co., 126 Minn. 286, 148 N.W. 71, L.R.A.1916D, 412. If an act is expressly forbidden and a penalty is imposed for a violation, the intent of the legislature is the controlling factor in determining to what extent, in order to preserve the requirements of public policy, contracts and other instruments made in connection with such act of violation are to be held illegal, if at all. 3 Sutherland, Statutory Construction (3 ed.) § 5608. An inference of invalidity does not necessarily follow from the fact that a statute prescribes a penalty. De Mers v. Daniels, 39 Minn. 158, 39 N.W. 98. Each statute must be judged by itself as a whole. Solomon v. Dreschler, 4 Minn. 278 (Gil. 197); Bowditch v....