Waite v. Frisbie

• Decision Date: 13 February 1891
• Citation: 47 N.W. 1069,45 Minn. 361
• Parties: WAITE v FRISBIE ET AL., (TWO CASES.)
• Court: Minnesota Supreme Court

45 Minn. 361

47 N.W. 1069

WAITEvFRISBIE ET AL., (TWO CASES.)

Supreme Court of Minnesota.

Feb. 13, 1891.

(Syllabus by the Court.)

1. Where a will is not read by nor to the testator, and it has been prepared by another person from instructions given by the testator, and is then signed upon an assurance that it expresses what he desires, if the language inserted is not the language of the instructions, and if it does not make, in legal effect, the provisions which the testator apparently desired, it is not his will.

2. Under the provision in section 5, c. 47, Gen. St. 1878, that a will shall be “signed at the end thereof by the testator, or by some person in his presence and by his express direction,” mere knowledge on the part of the testator that another is signing or has signed, and assent to or acquiescence in it, there being no previous direction, to be inferred from looks or gestures or other ambiguous token, is not enough. If the previous express direction is given by gestures, they must be unambiguous as words.

Appeal from district court, Blue Earth county; BUCKHAM, Judge.

E. P. Freeman, Pfau & Young, and Spencer, Washburn & Shoemaker, for appellants.

Daniel Buck, M. S. Wilkinson, and D. F. Morgan, for respondents.

GILFILLAN, C. J.

This is a contest over the will of Josephine O. Frisbie presented for probate. The will was allowed in the probate court, and an appeal was taken by the contestants to the district court. In that court two issues were framed for trial by a jury: (1) Was Josephine O. Frisbie of sound and disposing mind at the time of the execution of the alleged will? (2) Is the instrument now offered for probate the will of Josephine O. Frisbie? The jury answered both of these questions in the affirmative. The district court granted the contestants' motion for a new trial, and from the order granting it the proponent appealed to this court. The court below based its decision on errors of law occurring at the trials, and not on the sufficiency of the evidence to sustain the findings. One ruling at the trial involved the question whether, on the evidence, there was a case upon which a finding in favor of the will could be sustained. That was a request, refused by the court, that the jury be instructed to find a verdict in favor of contestants. After a careful examination of the evidence, we think the request ought to have been granted. Assuming the instrument to have been signed by the deceased or by another by her express direction, as required by the statute, still the instrument is not such an expression of her wishes as to be entitled to be regarded as her will. The circumstances were somewhat peculiar. Mrs. Frisbie was very ill and weak, so much so as to be unable to speak, or to indicate her wishes unless by gestures at the time of and for some minutes before the signing, and at the time of giving directions for the will she could barely speak. She was in a dying condition, and died within about 10 minutes after the signing. It is evident that when dictating what she desired put in the will, and while it was being prepared, and when presented to her for execution, she was supposed to be about to die. In such circumstances very great care is required to make sure that the instrument really expresses the will of the person signing, and not merely the inferences of the person drafting it, or of the by-standers, as to what the party's wishes are. Stating the evidence as strongly as possible in favor of the will, about an hour and a quarter before she died Mrs. Frisbie communicated to Mrs. Wiser, who was with her and remained with her to the end, her desire to make a will, and the disposition she desired to make of her property, and Mrs. Wiser stated these to Dr. Frisbie, the husband of deceased, and he wrote out accordingly as it was stated to him. The instrument he prepared in the form of a will, except the concluding clauses, contained five items, the first four making minor bequests to others, the fifth making him residuary legatee. The instrument was then read over to deceased, and she declined to sign it, because she desired in it a provision that, if her brother should come to want, she wanted the doctor (the residuary legatee) to take care of him. To prepare and insert such a clause a lawyer was sent for, and Mrs. Wiser informed him what Mrs. Frisbie desired, and he added, not in the precise words of the deceased, but in his own, expressing what he understood was desired, a sixth clause or paragraph. This clause did not change in any way the legal effect of the instrument as it was when deceased declined to sign it. It made no charge on the estate, and imposed no duty or liability on any one. It was merely a request to her husband to see that her br...