Bakke v. Bakke , 175 Minn. 193 ( 1928 )

¹ Reported in 220 N.W. 601. Appeal from an order denying a motion for a new trial.

Edward Bakke and his wife, having no children of their own, legally adopted Inez Margaret, a two-year old girl, in 1923. Mrs. Bakke died March 17, 1925, was buried on March 19, and Mr. Bakke died the next morning. He had been in declining health for some time and at the time of and immediately prior to his death was suffering with pneumonia, tuberculosis and diabetes. On the evening before his death, while in a critical condition, he made a will, signing it with his mark though accustomed to writing and signing his name. This will was drawn by one of the attorneys for defendant. In the will no mention was made of the adopted daughter.

The will, after providing for the payment of his just debts and funeral expenses and for the erection of a monument and for one bequest of $50 and another of $25, gave a dwelling house to one brother and the remainder of his property to another brother. The will was admitted to probate without contest. Objection was interposed by the guardian of Inez to the allowance of the final account on the ground that she was the only heir at law of the deceased and that the omission of her name in the will was not intentional, and asked that the property of the estate be decreed to her. The petition was denied and an appeal taken to the district court. It was stipulated that a specific question of fact should be submitted to the jury as to whether the omission referred to was intentional. The question submitted was: "Was the omission of Edward Bakke to make any provision in his last will and testament for his child, Inez Margaret Bakke, intentional and not occasioned by accident or mistake?" The jury answered, "No." A motion for a new trial was granted and the case tried again before the same judge and another jury, resulting in a like answer to the same question.

1. The sole question before the court and jury, and the one raised by the assignments of error here, is: Did the testator intentionally omit to provide for Inez Margaret in his will and hence to disinherit her? Two juries answered in the negative, and the trial court confirmed that conclusion. The property rights of an adopted child in this state are the same as those of a natural child. Odenbreit v. Utheim, 131 Minn. 56, 154 N.W. 741, L.R.A. 1916D, 421. G. S. 1923, § 8745, provides:

"If a testator omits to provide in his will for any of his children or the issue of a deceased child, they shall take the same share of his estate which they would have taken if he had died intestate, unless it appears that such omission was intentional, and not occasioned by accident or mistake."

Those claiming that such omission was intentional and not occasioned by accident or mistake must bear the burden of proving such fact. Whitby v. Motz, 125 Minn. 40, 43,145 N.W. 623, 51 L.R.A. (N.S.) 645.

Evidence was received as to the circumstances surrounding the execution of the will, the condition of the testator, conversations had at the time of its execution, as well as on previous occasions. Notwithstanding the directness of some of the testimony on behalf of the defense and the inferences that might properly be drawn therefrom, the situation was such that the jury had a right to reach the conclusion that it did. It cannot be said as a matter of law that an affirmative answer should have been given by the jury to the question asked. It was a question of fact for its determination. Its conclusion must stand. No good end would be subserved by a recital in detail of the evidence. No errors are assigned as to the rulings of the court on the admission of evidence. We find no error in the charge.

Order affirmed.