Waite v. Frisbie

When this case was here before — 45 Minn. 361, (47 N. W. Rep. 1069) — we held that upon the evidence the will proposed was not the will of Mrs. Frisbie, because the sixth clause, which was not read by nor to her, is not in her words, and does not, so far as the evidence or the findings disclose, express her intention. In giving instructions for drawing the will she did not indicate what ■words were to be used, but she did express a desire to make, in the sixth clause, a provision of some kind for her brother, in a certain contingency. Stating the ease in the light most favorable to the appellant, the evidence leaves it at least wholly a matter of mere conjecture whether she intended that the will should embrace an effectual provision for the support of her brother, or only a mere request or injunction upon her husband, imposing no legal obligation upon him or charge upon the estate. The clause, as drawn, makes no positive provision; and the will, with that clause in, is, in legal effect, mo way different from what it was when she declined to sign it, because there was no such provision. On the second trial, without a jury, the court below regarded the evidence on this point as in substance the same as on the first trial, and that its decision must be *425controlled by the decision of this court after the first trial. ’ There is no material difference in the evidence. The terms in which the court below expresses its finding of fact on the point may be open to criticism, but, as no finding in favor of the will could be sustained on the evidence, it would be useless to send the case back for a new trial, even though strictly, and upon a close construction, the finding of fact does not require the conclusion of law. It is manifest the court intended to find that the words in the clause are not those of the testatrix, and do not express what she intended.

Judgment affirmed.

(Opinion published. 51 N. W. Rep. 217.)