Johnson v. Heltne
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Johnson v. Heltne
Opinion of the Court
This is a contest over the will of decedent, Oscar C. Johnson. The probate court of Redwood County allowed the will and admitted it to probate. The contestants appealed to the district court which, after hearing evidence from the proponents, granted contestants’ motion for a directed verdict setting aside the admission of the will to probate. We granted the proponents’ petition for discretionary review. The sole issue on appeal is whether the will was properly executed. We reverse the trial court and remand for a new trial.
Witness Farnberg testified that, in addition to himself, the testator, Aamoth, and Sjaastad were all present at the time the will was executed. Farnberg testified that, as the testator’s attorney, he initially had Johnson sign the first page of the will on the signature line, and he then turned the two-page will a quarter turn and Johnson signed in the margin of the second page.
Witness Aamoth testified that he did not see the testator sign either page of the will and that Johnson’s signature was not on the will at the time Aamoth signed as a witness.
The proponents called Lowell Gryting as a witness. Gryting is the son of the owner of Gryting Implement and is a brother of the sole beneficiary under the will. Gryting testified he was on the premises of Gryting Implement on September 25, 1968, and observed the execution of the will. The contestants objected to testimony from Gryting concerning the execution of the will. The trial court sustained the objection on the ground that such testimony could not be used in support of the will or in substitution for the testimony of the subscribing witnesses. However, the court allowed the proponents to proceed with the testimony of Gryting in the form of an offer of proof. The offer of proof disclosed that Gryting’s testimony would support that of Farn-berg in nearly all respects, specifically relating that the testator had signed the will prior to the witnesses and in the presence of the witnesses and that the witnesses had subscribed the will in the testator’s presence. This evidence, however, was not allowed or considered by the trial court.
Judge Donald L. Crooks of the county court also testified, and the minutes of the probate court for the date on which the will
The statutory requirements for the execution of a will are contained in Minn. St. 525.18, subd. 1:
“Every person of sound mind, not a minor, may dispose of his estate, or any part thereof, or any right or interest therein, by his last will in writing, signed by him or by some person in his presence and by his express direction, and attested and subscribed in his presence by two or more competent witnesses.”
We have frequently held that when a will contains an attestation clause regular in form, and the signatures of the testator and the witnesses are genuine, the will is presumed to have been duly executed and the contestant has the burden of proving that it was not properly executed. In re Estate of Murphy, 269 Minn. 393, 131 N. W. 2d 220 (1964); In re Estate of Holden, 261 Minn. 527, 113 N. W. 2d 87 (1962); In re Estate of Coleman, 192 Minn. 86, 255 N. W. 481 (1934); Lott v. Lott, 174 Minn. 13, 218 N. W. 447 (1928); Baxter v. Baxter, 136 Minn. 59, 161 N. W. 261 (1917); Hennes v. Huston, 81 Minn. 30, 83 N. W. 439 (1900). See, Annotation, 40 A. L. R. 2d 1223.
However, even though such a will carries with it a presumption of due execution, it is still a question of fact whether the will was executed in the manner required by law. In re Estate of Coleman, supra.
In presenting evidence regarding the execution of a will, neither party is limited to the testimony of the subscribing witnesses and may, in fact, offer other evidence to overcome the adverse
In Baxter, we said the fact that subscribing witnesses to a will could not recall the circumstances surrounding their signing of the will does not require the conclusion that the will was not properly executed. We pointed out that the “jury had a right to supply the missing links from other testimony, and from the inferences connected with the document itself and the attestation clause * * 136 Minn. 61, 161 N. W. 262. Similarly, in Madson we said (128 Minn. 19, 150 N. W. 214):
“* * * As said by the Michigan court in Abbott v. Abbott, 41 Mich. 540, 2 N. W. 810:
“ We know of no rule of law which makes the probate of a will depend upon the recollection, or even the veracity of a subscribing witness. The law, for wise and obvious reasons, requires such instruments to be executed and attested with such precautions as will usually guard against fraud. But if the forgetfulness or falsehood of a subscribing witness can invalidate a will, it would be easy in many cases to use such artifices or corruption as would render the best will nugatory. Their evidence is not conclusive either way, nor does the law presume that they are either more or less truthful than others.’
“The question to be determined is whether the will was in fact executed in the manner prescribed by statute. This is a question of fact, and must be determined from all the evidence in the case, not from the testimony of the subscribing witnesses only. If the evidence, taken as a whole, establishes, satisfactorily, that the will was properly executed, its validity should be upheld, even against the testimony of one, or both, of the subscribing witnesses.”
It seems clear that the trial court erred in rejecting the evidence of Lowell Gryting. While his testimony of the facts surrounding the execution of the will would not necessarily be determinative, it should have been received and accepted for whatever
At the time of contestants’ motion for a directed verdict, the trial court inquired whether contestants wished to proceed with their evidence before he ruled on the motion. The contestants responded that they did not wish to proceed until the court had ruled. Because the court then dismissed the case, the contestants did not offer intended evidence as to undue influence and other allegations involving the validity of the will. We therefore reverse and remand for a full trial on the merits.
Reversed and remanded.
The second page of the will contains only a part of the attestation clause and the signatures of Johnson and the three witnesses.
In In re Estate of Murphy, 269 Minn. 393, 402, 131 N. W. 2d 220, 226 (1964), we stated as follows: “* * * [0]ur decisions clearly indicate that the witnesses need not be made aware that the instrument is a will, nor observe the testator signing the instrument, nor attest his signature by signing in the presence of each other. All that is required as a minimum is that the testator either sign the instrument in the presence of the witnesses or declare to each that the signature appearing was made
Reference
- Full Case Name
- SOPHIA JOHNSON AND OTHERS v. BRENDA GRYTING HELTNE AND OTHERS
- Cited By
- 1 case
- Status
- Published