Bryngelsson v. State ( 1955 )

KEETON, Justice.

Andrew Nelson died intestate in Lewis-ton, July 20, 1947. An administrator was appointed and proceedings had to determine his heirs.

Plaintiffs, respondents here, claim that deceased was born in Sweden June 2, 1882, and given the name of Anders Magnus Bryngelsson; that he left no wife or children, father or mother him surviving.

Gunda Hem, Helen M. Huntley, adminis-tratrix of the estate of Torvald Oskar Hem, deceased, Nils Hem, and Signe Hem Rasmussen, hereinafter referred to as appellants, claim that deceased was a Norwegian born March 11, 1873, in Aremark, Norway, and his name was Nils Bernt Nielsen; that he left surviving a widow, Gunda Hem, and three children, appellants here.

From a determination of the issues by the probate court in favor of respondents, appeal was taken to the district court. Trial was had de novo and voluminous evidence tending to support the contentions of the parties admitted.

The court found that deceased Andrew Nelson was known as Anders Magnus Bryngelsson, Anders Bryngelsson and A. M. Bryngelsson in Sweden and as Andrew Nelson and Andrew M. Nelson in the United States, and that Andrew Nelson, deceased, was the identical and same person as Anders Magnus Bryngelsson, and determined that at the time of his death he was unmarried, left no issue, father or mother; that his nearest and next of kin surviving are two brothers Johannes Bryn-gelsson and Karl Johan Johansen; that subsequent to the death of Andrew Nelson, one brother Karl Johan Johansen, died intestate and left surviving him his widow, Alma Johansen, and five children, all respondents here, and distributed the estate of deceased to them in the proportions authorized by statute.

From said decree appellants, heirs of Nils Bernt Nielsen appealed.

It is admitted by all parties that if deceased Andrew Nelson was in fact Anders Magnus Bryngelsson, born in Sweden, June 2, 1882, the decree of distribution is correct. Conversely, if deceased was in fact Nils Bernt Nielsen, a Norwegian, born in 1873 in Aremark, Norway, then appellants are entitled to inherit the estate.

In support of respondents’ claim evidence was submitted that deceased was born in Lardal, Dalsland, Sweden, June 2, 1882. At birth he was named Anders Magnus and later known as Anders Magnus Bryn-gelsson. He immigrated from Sweden in December, 1902, and entered the United States at New York, traveled from there to Hibbing, Minnesota, and changed his name to Andrew Nelson. He later settled in Washington and filed declaration to become a citizen of the United States. In his petition for naturalization dated June 14, 1913, he stated he was born in Lardal, Sweden, June 2, 1883; that he immigrated to the United States from Gotteborg, Sweden, in 1902; that he was married to Verna Martin Nelson in 1911. This petition for naturalization corroborates the claim of respondents as to birth, marriage, steamship and immigration records. His identity was further established by birthmarks, injury to hand, and declarations made to his wife while married, and to others.

The certificate of death, dated July 24, 1947, gives his birth as June 2, 1882, and his age as 65 years. Further testimony tending to prove the identity of deceased was offered and received in evidence. On such record the court established the identity of deceased and determined his heirs.

Appellants claim that deceased was in fact Nils Bernt Nielsen, a Norwegian, born March 11, 1873 in Aremark, Norway; that he immigrated to the United States in 1906; that he was married to Gunda Hem. An attempt was made to identify deceased as the husband of Gunda Hem by handwriting, photographs, place of residence in the United States, habits of life, general characteristics and business in which he was from time to time engaged. Testimony of respondents was to the general effect that Nils Bernt Nielsen was killed or disappeared about 1907 or 1908. Nils Bernt Nielsen is shown to have written letters and sent money to his wife in Norway prior to 1907 but not thereafter. After the letters and remittances to the wife ceased, the wife was advised by a relative that Nils Bernt Nielsen was probably dead, he having left Minnesota for some place in North Dakota and never heard from thereafter.

No sufficient reason was made to appear why Nils Bernt Nielsen, if living, did not communicate with his wife in Norway subsequent to 1908, the only logical conclusion being that he is deceased.

The whole record presents a disputed, partially conflicting factual situation. The facts found by the trial court establishing the identity of deceased are supported by competent, substantial and, in our opinion, preponderant evidence.

We are asked in the assignments of error to overrule the findings and conclusions made by the learned trial judge and substitute other findings and conclusions in lieu thereof. This Court will not disturb the findings made by a trier of facts when supported by substantial competent evidence such as is shown here.

Judgment is affirmed. Costs to respondents.

TAYLOR, C. J„ and PORTER, ANDERSON and SMITH, JJ., concur.