author: JOHNSON, Judge.

text:
    Ruth ANDERSON, Plaintiff and Respondent, v. George C. BLIXT, Defendant and Appellant.
    No. 7505.
    Supreme Court of North Dakota.
    Oct. 11, 1955.
    Rehearing Denied Nov. 22, 1955.

      Burnett, Bergesen, Whittlesey, Shermoen & Pancratz, Fargo, for defendant and appellant.
    J. E. Hendrickson, Roy K. Redetzke, Fargo, for plaintiff and respondent.
   JOHNSON, Judge.

This is an action to quiet title brought by Ruth Anderson, the record title owner of the. Northwest Quarter (NW^). of Section 12, Township 141 North of Range 51, Cass County, North Dakota. It is in statutory form.

The defendant asserts that he has an interest in the real property described in the complaint by reason of a lease with option to purchase dated August 11, 1950, and signed and acknowledged by Ruth Anderson, the plaintiff, and the defendant, George C. Blixt, and one Viktor Swanson, on that day, and by Andrew M. Anderson on October 2, 1950.

The lease with option to purchase, insofar as is pertinent to the issues, reads as follows:

“This Lease and Agreement Made this 11th day of August, 1950, .by and between Andrew M. Anderson, Ruth Anderson, his wife, and Viktor Swanson, all of Argusville, North Dakota, hereinafter called the Owners; and George C. Blixt, of Argusville, North Dakota, hereinafter called the Tenant;
“Witnesseth; That the said owners, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said tenant, his heirs, executors and administrators, have demised and leased to the said tenant, all those premises situate in the County of Cass and State of North Dakota, and described as follows, to-wit:
“The Northwest Quarter (NW^) of Section Twelve (12) Township One Hundred Forty-One (141) Range Fifty-one (51), Cass County, ’North Dakota; >
“The term of this lease shall continue so long as anyone of the said owners is still alive or until the option hereinafter given shall have been fully exercised. * * *
“In consideration of the mutual promises contained herein and of $1.00 and other valuable consideration, receipt of which is hereby acknowledged by the owners, the undersigned owners hereby agree that if they should, individually or collectively, decide to sell his or her interest in the above described real property, that it is hereby given to the said tenant, George C. Blixt, his heirs, administrators, or executors, the option of purchasing the said farm at the agreed price of $65.00 per acre upon such terms as may then be agreed upon, with interest on any deferred payments at the rate of 3% per annum.
“Upon payment of the same the said parties agree to deliver to the said purchaser, warranty deeds to said premises together with abstract of title showing good and merchantable title in themselves free and clear of all encumbrances.
“This option shall continue in full force and effect until the same has been fully performed and shall be binding upon all the parties hereto, their heirs, administrators, executors and assigns.” (Emphasis supplied.)

This case was tried to the district court of "Cass County, North Dakota, and determined in favor of the plaintiff. The court held that the lease and option were wholly and completely null and void and of no legal effect whatsoever. The defendant appeals.

Other facts necessary to the complete understanding of the issues involved are as follows:

On May 29, 1950, Andrew M. Anderson, the then owner of the land involved in this action, executed a warranty deed to himself, Ruth Anderson, his wife, and to one Viktor Swanson “as joint tenants, ahd not as tenants .in common, their assigns, the survivor of said parties, and the heirs and assigns of the survivor.” This deed was recorded in the office of the Register of Deeds, Cass County, on the 4th day of August, 1950, and appears in Book 207 of Deeds on page 633. The plaintiff, the wife of Andrew M. Anderson, did not sign as grantor, although the real property at the time was the homestead of her husband and herself. On August 11, 1950, Ruth Anderson, the plaintiff and respondent, and Viktor Swanson, and the defendant and appellant signed a lease with option to purchase, which is the Subject matter of this action. This was later executed by Andrew M. Anderson. The defendant took possession of the premises under the lease and has been farming the land since. The lease with option was recorded in the office of the Register of Deeds of Cass County on the 8th day of November, 1950. Andrew M. Anderson, the plaintiff’s husband, died on October 13, 1950, eleven days after he signed the lease and option to purchase. His estate was probated and final decree issued on the 22nd day of July, 1952. Under the terms of this decree the plaintiff acquired title to the property. On January 7, 1953, Viktor Swanson, one of the surviving grantees under the deed, sold and quit claimed his interest to Ruth Anderson. This deed was involved in a settlement of an action brought by Viktor Swanson against Ruth Anderson in which he had asserted a one-half interest in the land involved in this action. Thereafter she brought this action seeking the invalidity of both the lease and the option to purchase contained therein.

The lease arid option cover agricultural land. It provides for delivery'of one-half of 'the crops to the plaintiff, except corn, at an elevator to be designated from year to year. The lessee, Blixt, receives the corn crop in. exchange for summer fallowing of an equal acreage planted to corn.

The defendant and appellant has assigned twelve, specifications of error. The argument presented involves particularly three of these specifications. These are argued fully. With reference to the others the defendant and appellant refers .to the argument made and says:

“If the specifications which are discussed in detail * * * are sustained, then the holding of the district court below must be reversed and judgment should be rendered in favor of the appellant and the validity of the lease with option to purchase sustained.”

The defendant and appellant first argues specification No. 9, in which it is stated:

“The District Court erred in its memorandum opinion in holding that the lease provisions of the lease with option to purchase dated August 11, 1950, (Exhibit 2) violates the provision of Section 47-1602 of the North Dakota Revised Code for 1943 by a failure to set a definite term not to exceed ten (10) years.”

The next specification argued is No. 7, in which the appellant states:

“The District Court erred in its Memorandum Opinion in holding that the lease with option to purchase dated August 11, 1950, (Exhibit 2), failed to create an option which the appellant can enforce.”

Next the appellant sets forth .and argues specification No. 8, which is stated as follows

“The District Court erred in its memorandum opinion in holding that appellant waived or abandoned any right under the lease with option to purchase dated August 11, 1950, (Exhibit 2), by failure to assert a right to buy from Viktor Swanson at the time Exhibit 4, a quit claim deed from Viktor Swanson to .Ruth Anderson, was executed.”

The plaintiff arid respondent contends that the specifications are invalid as they do not refer to the findings of the court or the conclusions of law, but to the memorandum opinion. Although a trial de novo was requested in the notice of appeal, it was not made a part of the settled statement of the case. This court has held that such a request and demand fpr trial de novo is not sufficient. Retterath v. Retterath, 76 N.D. 583, 38 N.W.2d 409. Section 28-2732, NDRC 1943.

An examination of the specifications of error reveals a direct challenge of the trial court’s conclusion,

“That the certain, lease and option to purchase *• * * is 'hereby declared wholly and completely null and void and of no legal effect whatsoever, * *

Most of the specifications refer to designated findings of fact or conclusions of law.

The specifications of error must reveal the precise question presented’ to the trial court for determination; they must present clearly the question urged on the appeal. The issue in this case has become purely a question of law. The specifications directly put in issue, in this court, the lower court’s solution of the legal issues presented. They disclose the precise question before the trial court. There can be no mistake about that. .The specifications are sufficient. Under Section 28-1809, NDRC 1943, the appellant is required to serve with the notice of appeal, “a concise statement of the errors of law he complains of, * * * ”. This has been done. We will, therefore, consider the legal questions presented by the specifications of error.

It is contended that the lessee-, Blixt, waived his right under the option and the option has expired. The abandonment and waiver thereof, it is explained, came about by reason of the fact that in the action brought by Viktor Swanson against Ruth Anderson, which resulted in a settlement by which Viktor Swanson quit claimed his interest, if any he had, to Ruth Anderson in settlement of the action, Blixt did nothing to assert his right at that time, and therefore, has waived and abandoned any right to purchase under the option. Blixt was not a party-to the action brought by Viktor Swanson against Ruth. Anderson. The alleged .interest of Viktor Swanson in the land was never .offered to Blixt. As we shall see, Swanson had no 'interest to convey.

The deed of Andrew M. Anderson to himself, his wife, and Viktor Swanson, without the, signature of Ruth Anderson, his wife¿ as grantor, was void as to Viktor Swanson. Section 47-1805, NDRC 1943. Whether the deed is inoperative to convey any -title to Andrew M. Anderson or to his wife, Ruth Anderson, we need not determine. The title of Andrew M; Anderson descended to his wife as his sole heir upon his death. His • estate was probated and the property decreed to her. She was a party to the lease with option to purchase. The • lease, if valid, therefore was binding upon her.

In the-jurisdictions where the law restricts the duration of a lease of agricul-' tural land, before a court is justified in declaring it invalid, it must find that the lease is of agricultural land; that the use of the land for agricultural purposes is not excluded; that rent of service is reserved; and that the term is within the restriction.

The lease which is the subject of this action covers agricultural land. It provides for the use of the -land for agricultural purposes. The tenant must account for one-half of the crops each year to the landlord. For the service of summer fallowing to rebuild the land he is entitled to the corn crop. Annual rent and service are involved. But is this a lease that extends for a longer- period than ten years ? That is the crucial question.

To assist in the determination of that question it is necessary to attempt to ascertain the true meaning of some 'of the.provisions of -the lease.

Two provisions of the lease involved in this action seem to come into conflict. Before determining whether the lease contravenes Section 47-1602, NDRC 1943, it will be necessary to construe -and interpret the terms thereof with reference to -these provisions.

The lease and the option to purchase are a part of the same instrument. They are inextricably interwoven and unseparable; they are not divisible. The consideration for the option to purchase is, in part at least, based on the covenants of the lease. The option is valid if the lease is valid and vice versa. The option will be in effect and valid, if the lease is valid, as long as the lease is binding on the lessors or the survivor of them, the plaintiff in this action.

The lease is to continue, “so long as any one of said owners is still alive, or until the option- hereafter given shall have been fully exercised.” The .specific question presented is what effect on the clause just quoted in the lease is the provision thereof which states: “This option shall continue in full force and effect until the same has been fully performed and shall he binding upon all the parties hereto, their heirs, administrators, executors and assigns”, (Emphasis supplied.)

Andrew M. Anderson died eleven days after the lease with the option to purchase was executed. Viktor Swanson never acquired any estate or interest in the real property covered by the lease. Ruth Anderson. is the sole surviving lessor. The lease, if valid, therefore, continues as long as she lives, or for at least ten years, or until the option has been fully exercised. If the last clause quoted 'has no bearing upon the meaning of the expressed term of the lease, the validity of the lease is not in serious doubt. If it is interpreted so as to bind the heirs of the plaintiff, then there is a question whether the lease does not violate the terms of Section 47-1602, NDRC 1943, which states:

“No lease or grant of agricultural-land reserving any rent or service of any kind for a longer period than ten years shall be valid.”

If the clause of the lease, “shall be binding upon all the parties hereto, their heirs, administrators, executors and assigns”, is construed to make it binding on the heirs of the plaintiff, or her representatives; then this agricultural lease reserving rent may well extend beyond ten years from its execution.

Rules of construction relating to contracts generally govern with reference to the construction of a lease. 51 C.J.S., Landlord and Tenant, § 232, p. 849. Where one construction will make the lease legal and another one (that) will make it contrary to law, the former construction will be adopted, if reasonable. Knox v. Wolfe, 73 Cal.App.2d 494, 167 P.2d 3. The lease is to be construed as a whole to give effect to all its clauses, terms and provisions, if that can be done consistently with the rules. 51 C.J.S., Landlord and Tenant, § 232, p. 853.

When the lease with the option to purchase was executed by the parties, the record title to the land appeared in the name of three persons who signed it as lessors. It is noted that it is only the option provision of the lease that refers to it as being binding upon all parties, their heirs, administrators, executors and assigns. When the whole instrument is read with reference to its various terms, the state of the title at the time of its execution, and the fact that the option binds the lessors “individually or collectively” it appears reasonable that the option was only intended to be binding on the heirs of a deceased lessor or lessors, together with the survivor or survivors. In other words it was the intent that the survivor or survivors, and the heirs and representatives of a deceased lessor or lessors were bound to perform under the option. It also appears to be clear that the quoted provision of the option was not intended to apply to the 'heirs of the last surviving lessor because the lease by its terms was to endure only “as long as any one of said owners is still alive.” Upon the death of the last owner or lessor, it was to terminate. Thus interpreted all clauses of the lease can be given full effect. This interpretation ⅛ further emphasized by the fact that if the lessee should die before the option is fully exercised, the option provision and the general provisions of the lease were made binding on his heirs, executors and administrators. We, therefore, conclude -that the term of the lease is for the duration of the life of Ruth Anderson, or for at least a period 'of ten years should she live that long.

With this construction of the lease in mind, we will now consider whether it contravenes the terms of Section 47-1602, NDRC 1943.

The lease is one for the life of the owner or owners and is also made binding on the ■heirs, personal representatives and assigns of any deceased owner, or until the option has been fully exercised. -No one- can now determine how long the surviving lessor will live. She may die before- the expiration of ten years from the date of the Complete execution of the lease.' She may live beyond that time. The duration of the term of the lease is therefore indefinite. Its termination is dependent upon a contingency which may or may not happen within ten years.

“A lease for life, although it may extend for a period longer than that specified in the prohibition, is not within the prohibition; where the term is specified in the lease and exceeds the limitation, it is void per se, but. where it is left indefinite and its termination depends upon the contingency of death, which may happen within the period of limitation, it cannot be said to be void ipso facto as being made for a period longer than that permitted by the restriction.” 32 Am.Jur., Sec. 64, Landlord and Tenant, p. 80.

The case of Parish v. Rogers, 20 App.Div. 279, 46 N.Y.S. 1058, 1059, involved a lease which provided for a term for the lives of the lessor and his wife with rent payable to the lessor during ’his life and after 'his death to his wife. It was contended that the instrument was void as contravening the constitutional provision against leases of agricultural land reserving rent for more than twelve years. The lease was made in 1888 and .the action was commenced in 1896, eight years later.

The court in discussing the contention said: -•

“If a lease or grant of an estate for life is to be judicially declared to be one ‘for a longer period than twelve years,’ and therefore obnoxious to the constitutional limitation, such adjudication must be founded, not upon the particular words or terms in which the prohibition is expressed,-but rather upon some supposed principle of public policy.”

Then the court went on to say:

“It will be observed that .there is no declaration of intent to abrogate grants of life estates in agricultural lands in which rent or service of any kind shall be reserved. And, since the creation of such estates is not prohibited, either in expressed terms or by necessary implication, it ill becomes the judiciary to declare such prohibition upon a mere presumption of intention, nowhere indicated in the constitution. * * * Where the term is specified in the lease, -and exceeds the limitation, it is void per se; but where it is left indefinite, and its termination depends upon the contingency of death, which may happen within the period of limitation, it cannot be said to be void ipso facto, :as being made for a period longer than 12 years. * * * It does not appear, therefore, from the terms of the grant, that it will last longer than 12 years. In respect to whether the grant is void upon its face, the words ‘longer period’ should be construed as meaning a definite period, and as not applicable to estates whose duration is wholly indefinite and uncertain. This grant is not, by its terms, a lease ‘for a longer period than twelve years,’ but for an indefinite time, which can only be made definite or fixed by the happening of a contingency, viz. death, which may occur within the limitation. The instrument cannot, therefore, be said to create a term for a longer- period than 12 years, within the meaning of the provision.”' (Emphasis supplied.) -

In the case of Wegner v. Lubenow, 12 N.D. 95, 95 N.W. 442, 444, this court refers to the Parish v. Rogers case and quotes therefrom with apparent approval. While Wegner v. Lubenow, supra, was decided upon a point not directly involved in the Parish v. Rogers case, this court has adopted its reasoning. After thoroughly discussing and reviewing the Parish v. Rogers case, our court says:

“We find it unnecessary to a proper decision of this case, however, to determine whether section 3310, Rev. Codes (now Section 47-1602 NDRC 1943), applies to life leases, or only to leases' for definite terms, or whether a lease which violates said section is entirely void, or is void only as to the excess (see sections 3369, 3449, Rev. Codes), for the reason that, in our opinion,, the, lease involved in this case is not, in any event, such a lease as comes within the condemnation of said section'. It is only leases ‘in which shall be reserved any rent or service’ that are made invalid, and, in our opinion, this lease reserves no rent or service.”

In the case of Interurban Land Co. v. Crawford, C.C., 183 F. 630, it was held that the Alabama Statute, Code of 1907, Section 3418, which provides that no leasehold estate in land can be crfeated for a longer term than twenty years, applies only to tenancies for terms of years, and is not appropriate .to' or a restriction on tenancies for the life of the tenant or another. The statute, the’ court held, applies only to such leasehold estates as by the terms of the lease ' must endure 'longer than twenty years, and has no application to those which may or may not endure that long, contingent on the happening of a future event.

The’case of Aikins v. Nevada Placer, 54 Nev. 281, 13 P.2d 1103, was an action to quiet title. It involved certain mining claims. On November 28, 1927, one L. F. Ciar, now deceased, was the owner of and in possession of ten of the twelve mining claims set up in the complaint. On said date Ciar leased ten claims to the defendant Walker. The lease provided:

' “ ‘That, the same shall be effective for a period of five years unless, default he made prior thereto, and as long thereafter as the second party or, his assigns may see fit to operate said property pursuant to the terms and conditions of said lease.’ ”

Walker assigned this lease on December 9, 1927, to the defendant corporation. The case involved a Nevada" statute which reads:

“ ‘No lands, tow;n or city lots, or other real property, within this state, .shall hereafter.be conveyed, by lease or.otherwise, except in fee and perpetual succession, for a longer period than twenty years. All leases, -hereafter made contrary <to the provisions of this act' shall be void.’ ” St.1923 Nev. c. 175.

The court, in considering this law and the clause of the lease, says:

“It will be -seen that the duration of this lease is dependent upon a contingency which may or may not haj> pen within twenty years. We have found no -case directly in point 'on'the facts; but the case of Parish v. Rogers (Sup.). 40 N.Y.S. 1014, 1015, is strictly analogous.”

The court further says:

“As it does not appear affirmatively from the lease that it will extend beyond the statutory limitation, we cannot, in view of the applicable rule of strict interpretation, declare it void.” See also Waldo v. Jacobs, 152 Mich. 425, 116 N.W. 371 and comments thereon.17 A.L.R.2d 570.

It is argued that this court has designated Section 47-1602, NDRC 1943, ’as a statute against perpetuities, and 'that, therefore, the test as to whether or not the contract violates the statute is to' be measured by possibilities and not actualities. It is asserted that the statute has been held to be one against perpetuities in the case of Johnson v. Armour & Co., 69 N.D. 769, 775, 291 N.W. 113, 116, 127 A.L.R. 828.

The opinion in that case states:

“The trial court, in its memorandum opinion, held that the'contract was not void as offending the statute against perpetuities, or, in other words, that it" was not a ‘lease of agricultural land for a longer period than ■ ten years’, in which a rent or service has been re-, served.
“The court was correct in this view.”

This language, it is contended, amounts to a pronouncement by this court that the section .is one against perpetuities. This is not borne out by the discussiqn in. the opinion. The wording is perhaps an uncritical repetition of the language used by the trial court. This court no doubt was referring to the fact that this was not a leáse of agricultural land for a longer period' than ten years in which ‘ a rent or service had been reserved. It was not that type of a contract. After referring to Section 5289 of the Comp.Laws of 1913, now Section 47-1602, NDRC 1943; the court says:

“Such provision does not cover the facts in this case.”

The language, if properly interpreted, would indicate that the court took the facts in the case out of -the provisions ■ of Section 47-1602, NDRC 1943. That is all that the quoted language indicates. We do not construe that the language quoted in this case amounts to a holding that Section 47-1602 is one against perpetuities.

We have found no decision which intimates that a • similar statute or constitutional provision prohibiting the leasing of agricultural land beyond a designated number of years where an annual rent or service is reserved, is one against perpetuities. Strictly speaking, in this state we have no statute against perpetuities. The common law rule against perpetuities is not in force in this state. In this state there is no common law in any case where the law is declared by the code. Section 1-0106, NDRC 1943. Our statutes dealing with restraints on alienation are found in Chapter 47-02, NDRC 1943. Section 47-1602, NDRC 1943, is a part of Chapter 47-16 dealing with the leasing of real property. There is no support to be found anywhere' for the designation of Section 47-1602 as one against perpetuities, other than the tenuous argument based upon the quotation from Johnson v. Armour & Co., supra.

We need not now determine whether this lease, if it should extend beyond ten years, is invalid as to the excess thereof:-. 'Suffice-it to say that there is no proof available :to show that the lease will extend beyond the term of ten years. If we were to so determine, such conclusion would be based on conjecture instead of a certainty. Only future events will determine whether the lease is one that extends beyond a term of ten years. If it should extend beyond ten years, and that becomes ascertainable, ■ such issue would be -a -proper matter for determination at' that time. We do not now decide whether this lease would be prohibited by Section 47-1602, NDRC 1943, should it extend beyond ten years from the date of its complete execution by the parties. ' '

An option to purchase is not a sale of the'-property or an agreement to sell the property. It is a right to exercise a privilege. The option itself does not pass any right or estate in the land and does not create in the lessee any title to the land either legal or equitable. In the lease under consideration the appellant may never have any right whatsoever, since it is entirely possible that the lessor or the owner of the property may never decide to sell. In that event the lessee has nothing. In the case of Larson v. Wood, 75 N.D. 9, 24, 25 N.W.2d 100, 107, this court said:

“In State v. Crum, 70 N.D. 177, 292 N.W. 392, 393, we show that, ‘An option to purchase property is a mere privilege to buy, given by the owner of the property to another. The optionee is not a purchaser.’ The defendants Wood had a privilege to buy in accordance with certain terms. If they accepted that privilege by exercising the right of option within the time specified it would, then become a mutual contract, and could be enforced against Larson, had he thereafter failed to perform.” Hultberg v. City of Garrison, 79 N.D. —, 56 N.W.2d 319, 322.
'“An option, originally, is neither a sale nor an agreement to sell. It is •simply a contract by which the owner 'of-the property agrees with another person that he shall have the right to buy te property at a fixed price within .a time certain. The owner does not then sell his land or any interest in it. * * * By the option renewal con-itract the tenant did not obtain any right or interest in lands, either vested ior contingent, nor any contract for such right, but he did obtain a right to obtain such right or interest at any time during the life of the lease.” Keogh v. Peck, 316 Ill. 318, 147 N.E. 266, 269 and 271, 38 A.L.R. 1151;

An option to. purchase property is a mere privilege given by the owner to the optionee and does not constitute the op-tionee a purchaser of the property, nor give him any right or interest in the property until he accepts the privilege by exercising. his right of option within the term of the. lease. It is not an.interest in the real property. It creates no right either legal or equitable in the appellant.

Yet such a right has been recognized. Hayes v. O’Brien, 149 Ill. 403, 37 N.E. 73, 23 L.R.A. 555; Brenner v. Duncan, 318 Mich. 1, 27 N.W.2d 320, 321. In this last case, the option was designated as “first preference * * * to purchase.” Under the facts involved here the lease with the option to purchase amounted to the first parties,-giving the second party the privilege of purchasing the property upon the terms stated in the option, if and when decision to sell is made. When that occurs the property must be offered first to the lessee, or his heirs, or representatives.

In view of our determination that the lease between the parties is, of indefinite duration, and may not necessarily extend .for a longer period than ten years, and that the option will expire upon the termination of the lease, we do not find its necessary to discuss. the. application of Section 47-0227, NDRC Í943, to .the .option provision of the lease. It has.no bearing on the issue as we construe the lease-option instrument.

The judgment of the trial court is reversed.

BURKE, C. J., and SATHRE, MORRIS, and GRIMSON, JJ., concur.


source: Caselaw Access Project

author: WM. H. HUTCHINSON, District Judge.

license: Public Domain

text:
    MINNKOTA POWER CO-OPERATIVE, Inc., Plaintiff and Appellant, v. Anne H. BACON, Defendant and Respondent.
    No. 7513.
    Supreme Court of North Dakota.
    Oct. 21, 1955.

      Johnson & Hoghaug, Lakota, for appellant. .
    Philip R. Bangs, Grand Forks, for respondent.
   WM. H. HUTCHINSON, District Judge.

This 4s . an action in eminent • domain. It is brought by the plaintiff to acquire a right of way across defendant’s lands for a high-voltage electric transmission line which was heretofore constructed;and maintained-..under a lease which provided for an. annual rental. The action was tried to the court without , a jury and a. judgment was entered .granting the plaintiff the right of .way sought and assessing defendant’s damages in the sum.of $2712.-50 as follows: '' • , .

East half of Section 25, .878 acres, .. $ 62.50
East half of Section 25, 6 poles at $10.00 each,.,. 60.00
Section 32, 1.6.1 acres at $250.00 per acre, ....'..400.00
Section 32, ,19 poles'at $10.00 per pole, .... 190.00
For all detriment to lands of defendant "not occupied by plain- " .tiff’s structures of easements caüsed by construction of transmission lines on said lands 2000.00
Total, ..".. $2712.50

The plaintiff, feeling that the' damages awarded the defendant are excessive, has appealed to this court and asked a trial <le novo.

The defendant concedes the plaintiff’s right to acquire a-right of way .across defendant’s land. . The only issue, therefore, is the amount of damages defendant should receive for the easement plaintiff seeks to acquire, and the-damages which will accrue ' by. reason of its severance to that portion 'of defendant’s land not sought to be condemned.

These are the pertinent facts: The'defendant . is the owner of the East Half of Section 25, Township 152, 'Range 51," and Section" 32, Township 152, Range 50, all in Grand Fork's County, except such portions of Section 32 ás have heretofore been conveyed and as hereafter set forth. ’ No part of this land lies within the city limits of " Grand Forks, and no part has ever been subdivided' into lots. Section 32 is located to the northwest and near the corporate limits of the' City of Grand Forks. Section 25 is about two miles further to the northwest. Section 32 is bounded on the south by U. S. and State Highway No. 2; U. S.'and State Highway No. 81 running in a' northwesterly direction out of Grand Fqrks crosses the northeast corner of Section 32. The Northern Pacific Railway right of way 'bisects . this section entering about 200 feet north of the southeast corner and running in a northwesterly direction to a point about 2,100 feet north of the southwest corner of the section. The Great Northern Railway right of way bounds Section 32 on the west side. A creek known as English Coulee enters Section 32 about, 1'800 feet east of the southwest corner of the section and runs in a northeasterly direction about 3000 feet, where it crosses the plaintiff’s proposed right of way, then follows east along the north side of the proposed right of way about 800 feet, then flows north and northeast until leaving the section a short distance south of the northeast corner. The farm buildings are located in the northeast comer of Section 32'. Since 1940 the defendant has sold all of the land in Section 32 lying south of the Northern Pacific Railway right of way, in blocks for industrial and commercial purposes for an average of about $600 per acre. The defendant has also sold about 16 acres directly north of the Northern Pacific Railway right of way for commercial purposes, described by metes, and-bounds as follows; Beginning at a point on the east line of Section. 32 about 1,100 feet north-of the southeast. corner ■ of ■ the section, ; thence west about 1,200 feet, -thence south about 400 feet, thence southeasterly ■ along the Northern Pacific Railway right of way to the east line of . said section, thence north to the point of beginning. This block of about 16 acres was sold for about $1,000 per acre. The unsold portion of Section 32 and.-the East Half of Section 25 are being used as a- dairy, farm. This has been the use for more than twenty years of the. immediate past. The East Half of Section 25 and-all that portion of’ Section 32 lying east and north of plaintiff’s proposed right of way is in pasture. The plaintiff’s high line as now constructed is known as a single-pole line. It enters Section 32 on the east- side at a point about 1,600 feet north of the- southeast corner of the section. .• The line runs due west 1,155 feet, thence due north 3,689 feet to the north boundary line of the section. The high line enters Section 25 on -the east side and at the southeast corner of the northeast quarter, thence running west one half mile, on the quarter line. There are twenty-five poles in the installation together with necessary guy wires.

As in most condemnation cases, the evidence as to values is not in agreement. The testimony given fixes the value of the land in Section 32 owned by the defendant and used for agricultural purposes at from $125 to $250 per acre. It places the value on the lands in Section 32 that might be used for commercial or industrial purposes at from $800 to $1,500 per acre. It is conceded by the parties that the lands in Section 25 are of the value of about $62.50 an acre.

In a recent case this court had occasion to consider the law of eminent domain and the principles governing its application. We discussed in detail the provisions of the law and cited and analyzed the cases in our jurisdiction and others which, should guide in determining compensation. We refer to the case of Wishek Investment Co. v. McIntosh County, 77 N.D. 685, 45 N.W.2d 417. It is -unnecessary therefore to again review the statutes or to again cite the cases there collected.

As above stated, there are two matters for determination: (a) the value of the property sought to be condemned; (b) the amount of the severance damage. It is the contention of the plaintiff that the defendant’s lands'are farm lands and that their value as farm lands should be the basis in determining the amo'únt which defendant should receive. It is conceded by the defendant that the land in Section 25 is .farm .land and should be valued, accordingly, but the defendant contends that the land in Section 32, because of 'its proximity to the City of ¡Grand Forks and because of its transportation advantages by reason of railroads and main highways, should be valued as commercial and industrial property and not, as agricultural land. The defendant points to the fact that several tracts have already been sold for commercial purposes ,for an average of some $600 per acre.

It is true that the land in Section 32 lying south of the Northern Pacific Railway right of way, and one tract immediately north of this right of way, has been sold for commercial purpose. . However, to say that all the other land in Section 32 has a value other than for agricultural purposes would be contrary to the evidence and not a reasonable conclusion to-be drawn therefrom.

There is one tract of land in Section 32 which lies north of thq, tract already sold to the Northern Construction Company and directly south of the transmission line and consisting of about 13 acres which has a value for commercial purposes of about $650 per acre. The "surface generally fits it for such purpose as well as its'location with reference to other tracts already sold, the City of Grand Forks and the availability of the railroads and highways. The land traversed by the east and west segment of the transmission line and the land north thereof, since it is in or adjacent-to English Coulee, does not appear to be suitable for -industrial use. The actual acres taken by the plaintiff for its right of way must be valued as agricultural land, and this value in Section 32 would be $200.00 per acre. It .is conceded that the value in Section 25 is $62.50 per acre; -The transmission line bounds agricultural land except that portion of the line- running east and west in Section 32 - which bounds on the north the 13 acre tract that is entitled to'be valued as commercial property. There is no certain rule for determining severance damages. In each case the court must consider all the evidence and apply its best judgment to the established facts. Wishek Investment Co. v. McIntosh County, 77 N.D. 685, 45 N.W.2d 417. The severance damage to the agricultural land would not be large. There are some hazards by reason of storms and often weeds must be mowed. A reasonable severance damage for the land-in Section 25 would be $50.00. ‘A reasonable severance damage .for the, agricultural "land, in Section. 32 ..would be, $200.00. - .The severance damage •to. the, ,13 acre, tract valued as commercial property would be more substantial. Although we cannot tell to" what commercial use the tract may be eventually put, the severance damage-can be valued at $800.00.

The trial court found that the plaintiff required an easement with a width of 14.6 feet. The trial court’s finding is approved by‘this court.

The amount the defendant is entitled to " recover can be stated as follows:

For property taken in Section 25.. $ .55.00
For severance damage to land in : Section 25 ...:. . 50.00
■For property.taken in Section 32.. 325.00
For severance damage to agricultural' land in Section 32 . 200.00
For severance damage to -commercial property in Section .32 .... 800.00
Total $1430.00

The plaintiff has pointed out that the trial court not only gave the defendant the full value of the land taken but also gave judgment for a further sum of $10.00 for each pole used in the transmission line. All poles are located upon the land taken. There is no legal basisi for such an award.

The District- Court.' is directed to vacate "the ‘ judgment heretofore "entered and to enter a judgment -'in harmony with- this decision

BURKE, €. J., and MORRIS, GRIM- ‘ SON and SATHRE, JJ., concur: '

JOHNSON, J., .disqualified.


author: SATHRE, Justice. SATHRE, Judge.

text:
    ESTATE of Henry BURRIS, Deceased. Martha B. WHELAN, Petitioner and Respondent v. Henry J. BURRIS, Thomas Burris, Frances Albert Burris, William Burris, Wallace J. Burris, Sterling A. Walker, Special Administrator of the Estate of Leo Burris, Deceased, Mildred McCann, Gertrude Narlock, Loren Burris, Gerald Burris, and Henry Burris, St. Mark’s Church of Conway, North Dakota, Respondents and Appellants.
    No. 7487.
    Supreme Court of North Dakota.
    Oct. 26, 1955.
    Rehearing Denied Nov. 22, 1955.

      Day, Stokes, Vaaler, Gillig, Grand Forks, F. Lorene Whitesides, Park River, for respondents and ápp’ellants.
    Philip R. Bangs, Grand Forks, for petitioner and respondent.
   SATHRE, Justice.

■ This is a will contest in which the validity of an instrument purporting to be the last will and testament of Henry Burris deceased is involved. The proponent of the will Mártha B. Whelan is the daughter of the testátor and is the sole beneficiary under the 'terms of the will and nominated ‘as executrix thereof. The contestants are seVén sons of the testator and the children of' two deceased sons. The will was ad-Mittedfo probate in' the 'county court of Grand Forks 'County, North Dakota, upon petition by the proponent Martha B. Whel-an who was also appointed executrix of the will..

. The contestants .filed objections to the admission-of the will to probate on the following groundsi,

1. That it is signed by the testator using ■a matk. ’ ■

2. ■ That its provisions were induced by undue influence exercised on the testator by the proponent; and ; .,.

3. That the terms of the will are unnatural. ’

The county court made its order admitting the will to probate and appointing the proponent as executrix- thereof.

The contestants appealed from the order of the county court to the district court of Grand Forks County. . The case was tried to the court and a jury. The jury returned a verdict that the will was invalid, and that it was not the will of the testator Henry Burris and judgment was entered upon the -verdict. Thereafter the proponent made a motion-for .judgment notwithstanding the verdict which was thereafter granted by the' district court. The contestants appealed from the order of the district court granting proponent’s motion for judgment notwithstanding the verdict and from the order vacating the judgment entered upon the verdict.

It is contended by the contestants, first that the will was not subscribed and executed as provided by law, that the testator signed by mark instead of subscribing his name thereto. Second that the will was the result of undue influence, exercised upon him by his daughter Martha the proponent of the will and. sole beneficia-ry thereof.

The record shows that testator was one of the early settlers in Walsh County having arrived in t}ie vicinity of the town of Conway in 1882. He was engaged in farming and lived on his farm or in a home in Conway until 1948. During that time he had acquired five quarter sections of land and had accumulated a considerable amount of personal property consisting of cash, bonds, and stocks. ■

His wife died in 1933 and from that time until'1948-he lived more or less alone. A son, Will Burris, who was unmarried, spent considerable time with his father during that time. In 1-948 the testator had a stroke which resulted in paralysis of his leff side, and from that time on he was unable to take care of himself.

Martha B. Whelan daughter of the testator and the proponent of the will had left home before the death of her mother in 1933 and was employed for some time in a bank at Grafton, North Dakota. Thereafter she left the state and went to the state of'New York where she was married and established her home. - A son of- the testator, Charlie Burris, also lived in New York. Upon hearing of His father’s illness he came back to visit him. Money for transportation by plane was sent to the daughter Martha' B. Whelan and- she together with the wife of Charlie- Burris went by plane to the home of her father at Conway, North Dakota. Martha B. Whe-lan arrived in Conway in November 1948. Arrangements were then made that she was to-take care of her .father at his home in Conway and that she was to receive $35 per week for her-services. .

She stayed with' her father at Conway and took care of him until' September 1949 when they moved to the City of' Grand Forks where they lived until her father’s death June 25, 1951. They rented a house known in the record as the Fladeland house. They lived in the Fladeland house until some time in the summer of 1950 when they moved to a house at 719 Maple Avenue. . -They continued to live at the -Maple Avenue house for some time after which they moved to a-house owned by one Jane Malone located at'1629-6th Avenue North, Grand -Forks, 'North Dakota. While the ■testator and''his daughter Martha were ■living in Grand Forks, Martha’s husband and son Joe were also living with them. The will of the-testator which is the subject of this contest was executed on November 22nd, 1950 at the house located at Maple Avenue. It was prepared by W. T. DePuy a lawyer at Grafton, North Dakota. Mr. DePuy testifying for the proponent, .stated that shortly before November. 22nd, 1950 he received a telephone call, evidently from Martha B. Whelan, stating that her father wanted to see him. He happened to see Martha Whelan personally on -November 21st the day before the execution of the will at which time he was told by her that her father wanted to see him. He drove to Grand Forks in the afternoon of November 22, 1950. He stopped at the Ryan hotel and made some ■ telephone calls after which he drove to the house on Maple Avenue North. After arriving at the Maple Avenue house he called Dr. Leigh of Grand Forks requesting him to come to the home of the testator. He had previously called C. F. Peterson of Grand Forks, a lawyer, requesting him to come to the home of the testator. G. F. Peterson and one Charles H. Fee arrived at the Maple Avenue house shortly after the arrival of Mr. DePuy and Dr. Leigh arrived a few minutes later. These four men DePuy, Peterson, Fee and Dr. Leigh then went into the bedroom of the testator, Henry Burris and Mr. Peterson closed the bedroom door. They visited with the testator for a few minutes and then -Mr. DePuy asked him what he wished him to do. He replied that he wished,to .make a will and wanted Mr. DePuy to prepare it for him. Mr. DePuy had with him a blank legal form and a scratch pad. He made notations on his scratch pad of the instructions and directions given by the testator. Thereafter he prepared the will in his hándwritirig in accordance with the instructions given by the testator. The testator gave the legal descriptions of the real property owned by him and he also gave the names of all of his children and of his grandchildren, ■ The will provided first, for the payment of all of his funeral expenses and all of his debts. It next provided for a bequest of $50 to St. Marks Church, Conway, North Dakota for the repose of the souls of himself and deceased relatives. The will then provided as follows:

“I give, devise, and bequeath to my daughter, Martha B. Whelan, all of the residue of my property, both real and personal, of ' every name, nature and description and wherever situated to have and to hold the same to said Martha B. Whelan forever. I further direct that included in my estate shall be included the indebtedness of my sons to me in the following amounts to-wit:”

Then follow the names of the sons and the amount that each one owed him. The will provided further: . .,

“I delibérately omit to provide for' my sons, Thomas Burris, Henry J. Burris, Frances Albert Burris, William, Burris, Wallace J. Burris, and Leo Burris and for my grandchildren Mildred McCann, Gertrude Narlock, Loren Burris, Gerald Burris and Henry Burris.”

Then follows the nomination and appointment of Martha. B. Whelan to be the executrix of the last will and testament, “revoking all former wills I made, she to serve without bond.”

■ After the will was prepared Mr. DePuy read it to the testator and the testator declared to the witnesses that it was his last will and requested them to sign the same as witnesses thereto. At the time that the 'will was prepared the testator was sitting up in bed propped up by pillows behind his back. When the will was prepared and had been read to- the testator, Mr. DePuy placed the scratch pad in front of him and he attempted to sign his name thereon, but his left side was paralyzed and because of extreme tremor in his right hand he was unable to write his name legibly. The will was then placed in front of him and he drew a mark diagonally with a pen; the position of the will .was then changed and he drew another line diagonally resulting in a cross. Mr. DePuy then signed his name as witness to the mark of the testator. All four of the men, that is DePuy, Fee, Peterson and Dr. Leigh signed the will as' witnesses at the request of the testator in his presence arid iri the presence of each other. The testimony of Charles Fee and C.’ F. Peterson, testifying as witnesses for the proponent,; was to the-- same effect as the testimony given by -Mr. DePuy. ■ They stated that the will was read to the testator by Mr. DePuy arid- that he declared that it was his-last will- and testament'.and requested them to sign as witnesses thereto and that they sjgned.it in his presence and in. the presence of the othe.r-witnesses.. Dr; Leigh testified that he was a medical doctor residing at Grand Forks and that he had resided there for several years. He stated that he knew thé' testato'r Henry Burris in his life time and that he took care of him-on several occasions-before entering the navy;' that he was present in the bedroom where the-, will" of the testator was executed and that he signed his name as witness thereto; that he was in the room and-saw Mr. Burris sign the instrument-by mark. He was asked whether or not, the testator at the time he placed his mark-on that instrument, was mentally competent to which Dr. Leigh replied tliat in his opinion he was mentally competent. Dr. Leigh stated further that at the time the will was executed the left side o"f the testator was completely paralyzed and that he was unable to use his left-hand; that he had a very-severe tremor of his right-hand.; .that he had an object in. his 'hand which he thought was a pipe but that it--was.,difficult for him to- get it to" his mouth. His tremqr was - very severe and he was unable to control his hand with any accuracy.- On cross examination Dr. Leigh stated that he had called on Henry Burris, the testator, twice on November 22nd the day of the execution of .the -will. We quote from his testimony:

“Q. So you saw Henry Burris twice on the 22nd day pf November? A. Yes.
“Q. And -you , didn’t see . Henry-. Burris then again until March first, • 1951? A. That is right.,
“Q. So when you saw Henry Burris on that day, what’ was his physical condition as far as his health was concerned ? He was not a sick man ? A. ‘ Sickness is relative, of course.’ He was sick with old age.
“Q. And as far-as your observation there his condition was that — he was 91 -years old at that time, he was an old man? A. . Yes, he was that.”

The proponent then rested.

Section -56-0302, NDRC 1943 provides how wills must be executed and attested. It reads as follows:

“Every will, other than an olo-graphic will and a nuncupative will, must bé executed and attested as follows :
“1. - It must be. subscribed at the end thereof by the testator himself, or some person, in his presence, and by his direction, must subscribe his name thereto;
“2. It must be subscribed in the' presence of the attesting witnesses, or' be acknowledged by the testator to them to have been made by him or by his authority;
“3. The testator, at the time of subscribing or acknowledging the same, must declare to the attesting witnesses, that the -instrument is his will;
“4. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will, at the testator’s request, and in his presence;
“5a A witness to a written will must write, with his name, his place of residence ; and
“6. A person who subscribes a. testator’s name' by his direction must write his own name as a witness-to' the will. A violation of this subsection does not affect the validity of the will.”

Subdivision 4 of Section 1-0149, NDRC 1943 provides:

“ ‘Signature’ or ‘subscription’ shall include ‘mark’ when the person cannot write, his name being written near- it and written by a person who writes his own name as a witness.”

Section 730¾, Compiled Laws of 1913 (now Section 1-0149) was considered by this court in the case of In re McKee’s, Estate, 72 N.D. 86, 4 N.W.2d 652, 656. Im that case it said:

"It seems to us that when that. portion of Section 7309 with which'' we are here concerned was enacted, its purpose was to safeguard signatures hy mark. It made a signature hy mark thus witnessed prima facie ■of the same worth as a signature by writing. But it did not exclude other proof of a signature' by mark alone. 'So, where a will or other writing is offered and the signature thereto, is by •mark, witnessed as provided in the statute, no further proof is required that the mark is the maker’s signature unless.that fact is challenged.”

We think therefore that the signature by Henry Burris, by mark was sufficient to comply with the requirements of the statute. We are also of the opinion that in other respects , the -execution of the will complied with the formal requirements of Section 56-0302 quoted herein. No question was raised by the contestants as tó the testamentary capacity of the testator;

The only issue submitted to the jury by the trial court was therefore whether or riot the will of Henry Burris was the result of undue influence exerted upon him by Martha B. Whelan, the sole beneficiary thereunder. The jury found that the will was invalid and the result of such undue influence. Proponent made a motion for judgment notwithstanding the verdict. The motion was granted and the trial court held, as a matter of law that the evidence was insufficient to establish undue influence by the proponent and judgment holding the will valid was entered accordingly. The only question for' determination is therefore whether the evidence was sufficient to raise an issue of fact for submission to the jury on the question of undue influence. The general rule is that the elements necessary to be established to warrant the rejection of a will on the ground of undue influence are:

1. That the testator was subject to such influence;

"2. That the opportunity to exercise it existed; ' ' ■

3;, That there was a disposition .to exercise it, and ,

4. That the result appears to be .the effect of such influence.

The proponent having established a prima facie case the burden was on the contestants to establish by a preponderance of the evidence each'of , the four elements stated above. Suspicion or supposition of undue influence is not sufficient to require the submission of the question to a jury or to sustain a verdict. In re Estate of Bayer, 119 Neb. 191, 227 N.W. 928; In re Estate of Bainbridge, 151 Neb. 142, 36 N.W.2d 625.

.. In order .to determine the questions thus raised it will be necessary to..review the testimony of the witnesses, somewhat in detail. Thp record is voluminous, the trial in district court having consumed tyelve days. More than , twenty witnesses testified in .the case and a large number of exhibits of different types and character were introduced in evidence.

The proponent, Martha B. Whelan was called by contestants for cross examination under the statute.'- She stated that when she came to take care of her father in September 1948 her father had'five-quarter sections-of land,--some bonds;- mortgages and'cash; that he álso had a housé in the totvn of Conway which was his only home. She stated that "she lived with her father at Conway and took care of him there, until the fall of 1949; that while living at Conway one Mrs. Stringem was employed to assist her in taking care of her father, and she also employed a Mrs.- Siridal Brown. In September 1949 she moved with her father to the city of Grand Forks and rented a' house known in the record as the Fladeland house paying rent at $125 per month. They lived there until July 1950 when they moved to a house at 719 Maple Avenue 'where the will of Henry Burris was prepared and executed November 22, 1950.’ In the fall of 1949 her father gave her a deed to the home at Conway. She stated that her brothers Leo and Will.would come to the Fladeland house and when they came there were trouble and arguments. ' ■

Jane Malone, a witness for the contestants testified in substance as follows: She was a .registered nurse and was employed by Martha B. Whelan to take care of the testator after he was moved to Grand Forks; that she started her employment September 1, 1950 and continued in the employment until the death of the testator on June 25, 1951. She would come to the home of the testator upon telephone calls from Mrs. Whelan, — usually between 9 and- 9:30 in the morning. When she first went there she stayed a whole week, and after that her employment averaged four or five days a week. Shé stated that the testator’s condition was good for á man of his age, but his eyesight was poor and his hearing was impaired. When she arrived in the morning ‘ she gave him his breakfast and otherwise took care of him, as he was unable to leave the bed. Mrs. Whelan (Martha) was away the first week that Miss Malone was employed, which would be the first week in September 1950. After the return of Mrs. Martha Whelan the witness heard many conversations- between Mr. and Mrs. Whelan .and their son Jr., and the conversations had to , do with the property or estate of Henry Burris the testator. The first .of these conversations took place in the Fladeland house. Sometimes the conversations were had in the presence of the testator and sometimes just between themselves. The. witness was asked: “Will you state to the- court and jury what this conversation was? A. Well, she said her father had given so much money to her brothers and she had not received any .money, only her salary and she thought she should have a right to whatever money her father had, and property.”

With reference to a subsequent conversation between Martha Whelan and Miss Malone, Martha said she had not received any money from her father, and she had been living away from here and she thought it was time she received some money.

Miss Malone testified further:

“Q. Did you hear her (Martha Whelan) state or talk to her father on several occasions during the time that they were at the Maple house? A. Yes. (Objected to as repetition. She has said that. She has answered.)
“Q. Will you state to the court and jury- what you heard Martha Whelan tell her father ? A. She told him that he should have an attorney come and make a-will and provide for her.
“Q. . Did you hear her make any statement as to what the will should contain, what should be in the will? A.' Yes,
“Q. Tell the court and jury in your own words what you heard Martha Whelan say to her father ?
“Mr. Bangs. If you could fix the time more definite I would appreciate it.
“Mr. Stokes. Within a period of three weeks. There were several conversations during that period of three weeks.
“Mr. Bangs. Is that what Mrs. Whelan said?
“Mr. Stokes. Yes.
“Mr. Bangs. How long before? Can’t we get it fixed?
“Mr. Stokes. Q. Did you hear any conversation like, that the day before or the day on which the will was made ? A. I won’t say .that, the day before.
“Q. You say you heard it the day before? A. Yes.
“Q. And would you state what you heard Martha Whelan say to her father the day before ? That would be the 21st day of November. A. Well, she told him that the men were coming there, named them, and said there is going to be a will made providing for her. ■
“Q. ' Did you overhear Henry Burris say anything during the conversation? A. • Well, I don’t remember.
“Q. This conversation . took place on the 21st. Did you hear any conversation on any day prior to the 21st? A. 'Yes. • ;
"Q. With repect to the will between Martha Whelan and Henry Burris? Yes.
“Q. And would you state to -the court and jury as near as — can you give any particular date or approximate date prior to the 21st on which you heard this further conversation? A. There was some ■ conversation every day for at least two weeks before the 22nd.
“Q. Will you state to the court as nearly as you can in substance what that conversation was ? A. Practically the same, there must be a will made ' providing for her.
“Q. Now did you ever at any time . hear Martha Whelan, make any state- . ment to her father about her brothers? A. Yes. ■
“Q. And where were those statements made, at what house? A. At all the houses they ever lived in that I was with them.
“Q. And so that you. heard her make statements to her father concern-, ing her brothers while they were living at the Fladeland house in September and October? A. Yes.
“Q. Is there any particular date or any particular time you can set as to any particular conversation of this nature occurred? A. I could not set any date.
“Q. Was the statement that she made to her father about her brothers different on different occasions or was it generally of the same nature every time'you heard ¾ ? ‘' A. Generally of the same nature;
“Q.- .Would you state to the court and jury what you heard Martha Whe-lan tell her father or to her father about her brothers ? A, Well, she said they didn’t care anything about him and they didn’t, come to see him, and they had got all the money they could from him and that they didn’t care about it. That was about it.
"Q. Did she say’ anything to her father at any time about these guardianship proceedings? A. Oh, yes, she told him about .it.
“Q. And did she say ’ anything to her father in connection with those as to what the boys were trying to do or trying not to do? A. She did say that they were trying to put him in an old people’s home or guest homei

Miss ’ Malone testified -further that- ■ she came to 'the' Maple street house on the morning of November 22, 1950 at about 9 or 9:30 in the morning; that she'gave the testator his breakfast, and she also ■ gave him an eggnog with whiskey or brandy in it, and that Martha Whelan said that the eggnog would make her father- feel better, better able to make the will.

Louis Leff testifying for the contestants stated that he had been county judge of Walsh County from 1941 to-1953; that he was acquainted with Henry Burris the testator and had known him- for twenty years or more; that between June 1st and June 13th, 1950 he called on Mr. Burris- the testator in connection with certain -guardian proceedings in his court commenced for the purpose of appointing a guardian for said Henry Burris; that he made another call on the testator on or about June 29, 1950 at Grand Forks; Martha B. Whelan, the proponent of the will was present in the room with Mr. Burris and the witness when he called; that he discussed with Henry-Burris his business affairs; 'that every timé he asked Mr. Burris a question Martha, his daughter, would answer for him. We quote from his testimony:

“The Court: State what you saw or what Mrs. Whelan said; A. Mrs. Whelan .said that the guardianship or trusteeship was hot necessary, because she was — she had power of attorney .from him and she was taking care of his'property arid business, and he was very, very well satisfied. That is’wh'at she said, and that is what he said. '■ '
“Miss Whitesides: Q.. = Can, .you think of anything else that she said or he said? Á1 She also stated that she had never received any money or property from her father, and that the sons of Mr. Burris, or her brothers, had already received .their shares from advances and it was about high time she was ■ receiving something herself.
' “Q. ' Can you think of anything else, Mr. Leif, that was said or Mr. Burris said? A. I suggested to Mr. Burris and I told Mr. Burris that he should go to .a hospital, that , his expenses would be cheaper than being .taken care of in a private home as he had then, if he kept on the present rate .of' expenditures that in spite of his .property holdings he .would end up a pauper, and be a county welfare case.”

Harry Burris testifying for contestants stated that he was a son of the testator, and a brother of Martha B. Whelan; that he lived in Lethbridge, Alberta, Canada, having moved to Canada in 1944. He came back to North Dakota in the fall of 1950, which would be his third trip to visit his father- since- he moved to Lethbridge. He arrived at the home of his brother Leo November 16, 1950. On November 18th following he went to Grand Forks and called on Iris father Henry Burris. He said his- father was old and weak, he was hard of hearing and his eyesight was poor. His sister Martha Whelan was not. at home that day. He and his father talked about his father’s business and his father said: “Well, I guess I will have to change my will; some of them are not satisfied”. He, Harry, replied: “I said that he already made a will, let us talk about old times.” He next saw him the following day, Sunday in the afternoon and stayed until about ten that evening. He stated that he had several, conversations with -his sister Martha that afternoon about their father’s affairs. He was asked by counsel “remember some of the things you said and some of the thirigs Mrs.' Whelan said?

“A. Well, I said several times, I said it more than once, to let us get guardians .appointed for Dad’s estate. And after that, I told her, pointed out to her, I said fehat she would not have to worry about the money, she would get her money and the bills would be paid.' And I don’t know of anything more I can say. That was just a repetition of a lot of that stuff. We talked all the afternoon.”

He did not return to Canada until December 12, 1950, and during his stay he visited his father several times.

Mrs. Rose Burris, wife of testator's son:Tom testified that she married Tom in 1921; that their home was in Kolin, Montana and that they had lived there since 1921;' that she had known her father-in-law, the testator, since 1920; prior to 1939 they lived at Conway, North Dakota.; she and her husband had visited her father-in-law, Henry Burris once every year since they moved to Montana; in 1948 the testator came - to Montana and visited with them a month, and she brought him back to Conway. She and her husband took him to Canada where he celebrated his 89th or 90th birthday. She and her husband came to Grand Forks for testator’s funeral. During the time they were at Grand Forks for testator’s funeral she had a conversation with Martha B. Whelan concerning testator’s property. We quote from her testimony.

“Q. During the time that you were here for Mr. Burris’ funeral, did you have any discussion with Martha Whelan concerning Mr. - Burris’ property?. A. Yes.
“Q. Where did you have that dis-. cussion? A. In front of the undertaking- parlor, Norman’s.
“Q. Where? A. In Grand Forks.
“Q. And who was'present"at that time? A.. Just her and I.
“Miss Whitesides: ■ Q. Mrs. Burris, did you have a ■ conversation with Mrs. Whelan? A. Yes. ;
“Miss Whitesides: Q. Mrs. Burris, state it as nearly in the words of Mrs.' Whelan or yourself as possible. A.' She said she didn’t like the way the boys were treating her, and that Harry had come down here from Canada and talked about her. And I said I didn’t blame the. boys, because I knew how Grandpa always felt about his property and how careful he was and it was taking too much money to keep him in Grand Forks. And -she said DePuy had told her that him and her were doing just exactly as the boys would have done.”

The witness stated further that she and her husband came to Conway in 1949, and they came to Grand Forks in March 1950 and visited her father-in-law the testator.

Mr. Ted McCann testified for contestants that he married a niece of the testator in 1941 and knew him since that time. He knew that testator moved to Grand Forks in the fall of 1949, that he and his wife visited testator in March ■ 1950. Martha Whelan and her husband were there at that time. He visited the testator and had a conversation with him at that time. We quote from his testimony.

“Miss Whitesides: Q. Did you have a conversation with Mr. Burris at the time you were at the Fladeland house in March 1950 ? A. Yes.
“Q. And will you state Mr. Burris’s exact words as near as you can remember? A. The conversation him and I had?
“Q. Yes. A. Well, when I went in there he said ‘You know, :Ted, I should be declared incompetent. I am •. not capable of taking care of my affairs.’ And he talked for a little while and he said ‘Would you look after my affairs?’ And I-said .‘No I would rather not.’ And he stopped and he said, ‘I don’t blame you’. Then he ■asked me if I knew anyoneT thought he could get'and. I told him-I. thought he might be able to get John'Kennedy, as he was a relation of his, that he might be able to .look, after his affairs. ■Then he-asked me-if I would see John Kennedy, and I said, Yes, I would. Then as I left the house, or left the ■room,'I went in and told Mrs. Whelan that he wanted-me to see John Kennedy, and I didn’t care much about seeing him, and. she said she would send him a post card. . Add I didn’t talk to John Kennedy at all aboút it.”

Mrs. Lorene McCann wife of Ted Mc-Cann testified that she was with' her husband at the visit ,to the testator in March 1950, that she was in the kitchen and that she heard the conversation between the testator' and her husband, and that Martha Whelan was back and forth between testator’s bedroom and the kitchen.

. Will Burris, a son of testator testified in substance as follows: He was born on his father’s farm at Conway; that his father lived on his farm near Conway or in Conway until he moved to Grand Forks in the fall of 1949. He said his father’s health was poor, he was blind in one eye and his hearing was impaired. He could not get around and had to be lifted every place, and he was moved to Grand Forks in the fall of 1949 where his daughter Martha and her husband and her son lived with him. While testator was at Conway $1,000 of his money was placed in the bank subject to check by Will Burris and his brother Leo for the purpose, of. paying the expenses of taking care of their father. The money was put in the bank in the fall of 1948 and it. was-all spent by March 1949. At, or about the time that they were moving testator to Grand Forks some discussion was had between Will and Leo Burris and Martha Whelan as to signing of the checks on the said $1,000 but Mrs.-Martha Whelan did not agree that Will' and Leo "should sign * them. '

Will Burris testified that when Leo and he called on their father in March 1950 at Grand Forks, Mrs. Martha Whelan was present; Will and. Leo went into- their father’s bedroom and that, “he was kind of sleeping”. They woke him up and asked him “how he was” and about the first thing he said,'-“Leo, I -want-you-and 'Will to look after my -farm -up there” _and Mrs. Whelan said “you are not looking after the farm, we are looking after that -farm”. Leo asked his father, “Do you know your taxes are not paid this-year’’? “Do you know the money is gone for the crop?” and he said they figured it at $3,500. Leo then asked Mrs. Whelan (Martha) “Didn’t my father have some bonds” and Leo: said “I believe it was around $3000.00 worth of bonds. Where are they?” Mrs. Whelan said they are sold, she had to sell them. Well, Leo told Mrs. Whelan, he said “My father had about $2100.00 work of A. T. & T. stock, where is that”. “She said that is sold too”.. He quoted Mrs. Whelan as saying that she should have money; she did not know where it was coming from, and' that she should get more than the boys. In his 'conversation with his father, the testator, he' quoted him as having said that Martha Whelan was driving him crazy asking for money. Will’s argument with Mrs! Whélan ended by his statement that he would never come back to the house' as long as the Whelans were there.

John Kennedy, residing at Minto, North Dakota, testifying for contestants stated he had known Henry Burris, the testator a long- time, that he was testator’s nephew; and had visited with him on numerous' occasions at Conway. He visited with the testator at the Fladeland house in Grand Forks in April 1950, he was shown defendants’ exhibit C, previously admitted in evidence, which was a codicil executed • by testator; he was present and saw the exhibit signed by the testator,' ánd the testator said he wanted the witness, Kennedy, his son Harry and Marta Whelan to be executors.- Mr. DePuy, Martha Whelan and the witness were in the rdom with testator at that time.

Mr. -Kennedy testified further that on or about the month of October, 1949, at Conway, North Dakota, the testator Henry Burris, said that “he had his business affairs straightened up, ánd that for- sentimental reasons it might be that they would wish to keep the homestead, the Burris farm, in the name of the Btirrises, and he had stipulated that Will Burris, be given the privilege of purchasing the farm if he so desired.” We quote from the testimony:

■ “Q. Did he say'anything else at that time that you remember? A. Yes, he said that the balance of ■ it would be equally distributed'. Could • I" make a correction of that, Mr. Bangs?
“Mr. Bangs: Surely. A. When I made reference to the balance, the price stipulated was supposed to apply on Will’s share.”

Mr. Kennedy testified further that he had a conversation with the testator at the Fladeland house, in Grand Forks in the latter part of October 1949 as follows,:

“Q. Will you state to the court and ■jury as nearly in the words of Henry Burris, what he said at that time ? A. Mr. Burris said to me at that time, he said ‘John, I am awfully pleased you called, because there is something I wish' to discuss with you’. He said ‘They are after me here to change my will’. And I told him, I said,. T thought you had that all taken cape of’. And he said, T thought I did too, but it don’t seem to please them here.’ I said, ‘My advice to you, Uncle Henry, would be not to do it, because, ‘I said, we can’t please people while we are living and why be concerned after we are dead.’ And he answered — he thought for a moment and he answered, he said, ‘John, you know.I can’t get along without Martha.’ ”

He stated further that he told Martha Whelan, the proponent that Henry Burris, made reference to changing, a will, and that he, Kennedy, told him not to do so and said to Martha: “I would advise you to do the same because any changes this late d$te no doubt would be contested”. That Martha said: “I don’t care whether they do Or not providing the boys don’t gét anything out of it.”

Mrs. Martha Whelan was called in rebuttal to testify in her own behalf. Her testimony was in direct' conflict with'the testimony of the witnesses for contestants with reference to the statements attributed to her regarding the making of her father’s will. She denied .categorically the testimony of the nurse, Jane Malone, to the effect that she had made any statement with reference to her father .changing his will, or listening at the bedroom door when the will was being executed. She denied Miss Malone’s testimony that her father was gi.ven an eggnog with whiskey and brandy -in the morning of the day that the will was executed. She specifically denied that she had made the statements attributed to her by the other witnesses for the contestants as to her unfriendly attitude toward her brothers, or that she had urged or importuned her father to make her the sole beneficiary under his will.

On cross examination she testified that her father had given her all his personal property, and that while she lived with her father at Conway she purchased a car. We quote from his testimony:

“Q. But it was your father’s car? A. Yes. He bought it for the use up in Conway, we needed it. We couldn’t get meat or anything.
“Q. You have sold that car? A. His personal things were mine.
“Q. Have you anything in writing to show that these personal things were yours? A. Yes. There was an article all his personal property was given to me.
“Q. Have you that article with you ? A. I don’t have it with me, no.
“Q. That- is. back in Brooklyn, New York?. -A. ¡ If it is, jfwill be.here with the things, I don’t know, whether Mr. Du Puy .has it.
“Q. The car was your father’s but it was in your name? A. It had to be that way, yes, to be safer.
“Q.' And you disposed of that car, even though fit was ■ your father’s car ? A. He had given it to me.
“Q. And when did he give it to you ? A. He gave me all his personal property.
“Q. When was that? A. Up in Conway.
“Q. . In Conway? A. Yes.
“Q. That would be before November 19, 1949? A. Yes, sir.”

She further admitted that two days before the execution of the will she induced her father to change his life insurance policy so as to make her the sole beneficiary thereunder.

■ The testator in the case at bar was an aged man being ninety years old at the time of execution of the will. In the fall of 1948 he had a stroke which resulted in complete paralysis of his left side and inability to use his left hand. He had a severe tremor of his right hand which made it difficult for him to. use it. His hearing was impaired and his eyesight was poor and one. eye was blind. The stroke made him physically helpless and he required ássistance when it became necessary' for him to move about in his room. . His daughter Martha B. Whe-lan, the proponent, lived in the state of New York, having left home some twenty years before her father had the stroke. By arrangement with her brother she came to Conway in the fall of 1948 for the purpose of taking care of her father and for which she was to be paid at the rate of $35 per week. On November 7th, 1949 the testator executed three instruments, contestant’s exhibits 1-2, 0-2, and P-2. Exhibit 1-2 was a power of attorney to the proponent Martha B. WHelan; The power oí ‘attorney is in''the usual form ‘ and- authorized -her to transact-all of the business of the testator to the same effect and in the-same manner as he could have performed the same himself. Under her power of attorney Martha B. Whelan took full charge of her father’s business. She collected his income from his farming operations, cashed all -checks, issued all checks in payment .of expenses in connection with his business and other, expenses as well as expenses in connection with the care and nursing of the testator. She cashed áll of his bonds; issued checks ■on all of his bank balance and sold his A. T. & T. stock. She-.claimed, of course that she did all of this in order to defray expenses in ■connection with her father’s business and in providing him the care necessary for his comfort. Exhibit P-2 is a certified copy of a quit claim deed from testator- to Martha B. Whelan. The property conveyed is the Rome of the testator located in Conway, Walsh County.. Exhibit 0-2 is a written instrument executed by the testator I-Ienry Burris, wherein he agrees to pay his daughter Martha B. Whelan at the rate of $55 per week for taking care of him and nursing him, and it provides it'shall-’be retroactive .to November 2nd, 1948 the day-that Martha B. Whelan arrived in- Conway, North Dakota.

. There, were also introduced;and admitted in evidence contestants’ Exhibits C, and B.

Exhibit C is dated March 29, 1950. It is a codicil executed by the testator Henry Burris to his will dated the 21st day of October, 1947. It provides that,

“Whereas since my son,-Charles A; Burris, is now deceased: Now, Therefore, I hereby revoke all and any devises and bequests in said will made to ■said Charles A. Burris and direct that his heirs shall receive nothing from my estate.
“I further direct and do hereby appoint my daughter Martha Whelan, my friend John Kennedy, to be executors •of my last will and testament; to serve without bond.
■ “In- all other respects I confirm my said- will. In testimony whereof, I have hereunto subscribed my name the 29th day of March 1950.”

. The instrument was signed and attested by two witnesses on the 29th day of March 1950.' '

Exhibit B is dated July -7th, 1950. It was executed by-the testator as a codicil to his will,i dated the 21st day of October 1947. It provides that, •

“Whereas it is my desire that my daughter, Martha Burris Whelan, shall receive the sum of Five Thousand Dollars from my estate in addition to all devises and bequests to her in said will and codicil provided.
“Now, Therefore, I give and bequeath to my daughter, Martha Burris Whelan, the sum of Five Thousand Dollars. ($5000.00); the same to be a special bequest having preference over any and all other bequests and devises in said will and codicil made.
' “In all othet respects, I confirm my said will dated Oct. 21, 1947 and the codicil thereto dated March 29, 1950.”

It was signed by mark duly witnessed and attested by two witnesses on the 7th day of July 1950.

We think the evidence is sufficient to raise an inference of susceptibility to undue influence on the part of the testator. He was ninety years old when the will was drawn. Two years previous he had become wholly unable to take care of his physical needs. His statement to Ted McCann in March 1950 that he, the testator, was not capable of taking care of his affairs and that he should be declared incompetent and his request to McCann to look after his affairs; his request to his sons Leo and Will to look after his farm, his remark to his son Will Burris, in March 1950 that his daughter Martha was driving him crazy asking for money would indicate that he was under a severe mental strain which would render him subject to undue influence. There was abundant opportunity for his daughter Martha to exert it. He was under her constant care and supervision. He had given her a deed to his home in Conway. He had given her a power of attorney to do all his business. He had signed a written agreement a year after she came to Conway, increasing her salary from $35 per week to $55 and making it retroactive to the time of .her arrival in the fall of 1948. In March 1950 and July 1950 he executed codicils to his will of October 21, 1947, each of which codicils was favorable to the proponent Martha Whelan. Testator’s ill health, his age and sen-ile condition, his residence in Martha’s home and the confidential relation- existing between them are independent facts permitting an inference that testator was susceptible to undue influence and that Martha Whelan exercised it. We quote from 2 Page on Wills, Lifetime Edition Section 825;

“The fact that testator and beneficiary are members of one household, or that testator lives with the beneficiary to whom he makes such gift, is said not to raise a presumption of undue influence.
“While it is said that such evidence does not of itself tend to prove undue influence, it is said that such fact is admissible in evidence. A presumption or inference of undue influence is said to arise where testator is aged and feeble, leaves the bulk of his property to the children with whom he lives to the exclusion of others for whom .he has always manifested affection, or where testator actually reposes trust and confidence in the person with whom he lives.”

The two codicils to proponent’s will of October 21, 1947 are evidence to the' effect that said will was inconsistent with' the will of November 22, 1950. The will of October 21, 1947 was executed at a time when testator was free to act by his own volition without the exercise by others of undue influence. The rule in such cases is stated as follows in 57 Am.Jur., Will, Section 409, page 292:

“It is ,held in-most jurisdictions in which .the question has arisen tha.t fom mer wills of the testator, executed at a time when undue influence is not charged or does not appear to have been present, which contain- provisions inconsistent with those of the will in contest, may be , admitted in behalf of the contestant in support pf a charge of undue influence. Although it is recognized that the disparity, between the earlier will and the will in contest may well depend upon the length of time that elapsed between the execution of the two instruments, changes in conditions, and changes in the attitude of the testator’s children or other natural objects of his bounty, the view is that the inconsistency .between the wills is one of the circumstances which should be placed before the jury to be accepted by them for what it is worth in the light of all the facts and circumstances in evidence.”

Miss Malone testified that Mrs. Whelan told her father the day before the will was made that he should have an attorney come and make a will and provide for her, and that the ■ men were coming there, naming them, and that there was to be a will made providing for her. These were incidents so near in point of time to the date of execution of the will that they could have influenced the mind' of the testator. Miss Malone further testified that Martha Whe-lan had some conversation of this nature with her father every day for at least two weeks before-the date of the execution of the Will. While Mrs. Whelan'denied’that ■such conversations were had with her father, nevertheless the conflicting testimony raised questions of fact as to undue influence which could be submitted to the jury;

In Demmert v. Schnell, 4 Redf., N.Y., 409, 413, it is stated:

“The rule to be deduced from the decisions on the subject is this: that where a person enfeebled by old age or illness makes a will in favor of another person upon whom he is dependent, and that will is at variance with a former will made, or intentions formed when his ■ faculties were in' their full vigor, and is opposed to the dictates of nature and justice, the presumption is that such a will is the result of undue influence,'unless that presumption is satisfactorily rebutted by other evidence in the case.”

The question of undue influence was considered by the Supreme Court of Oregon in the case In re Lobb’s Will, 177 Or. 162, 160 P.2d 295, 304. We quote from the opinion:

“This court has held that undue influence, to be sufficient to cause a will to be set aside, must have been such as to have overcome the free volition or conscious judgment of the testator, and to have become the efficient cause without which the will would not have been made. In re Holman’s Will, 42 Or. 345, 70 P. 908; In re Diggins’ Estate, 76 Or. 341, 149 P. 73. The fact that a confidential relationship existed between testator and beneficiary is not, in itself, sufficient to vitiate a will, in the absence of evidence indicating that the beneficiary exercised undue influence. In re Turner’s Will, 51 Or. 1, 93 P. 461. However, where a confidential relationship is shown to have existed, and the will is inconsistent .with the claims ,pf duty and affection, slight evidence that the beneficiary abused the testator’s confidence is sufficient to invalidate it. In re De Haas’ Will, 135 Or. 392, 296 P. 42.”

It appears from the record that prior to the fall of 1948 when the proponent Martha Whelan came to Conway to take care of her father she had been absent from the state for more than twenty years. There is no evidence in the record of any intimate relationship between her and her father during such absence. The evidence would indicate that from the time she arrived in Conway she assumed a rather dominant attitude towards her father and in' the management of his business affairs, and this attitude seems to have existed up to the time of the execution of the will.

With reference to her brothers there is nothing in the record'to indicate that the relationship between them and their father was anything but friendly and congenial. The relationship between them appeared to be the normal attitude of mutual friendliness and devotion between a father and his children. There is no evidence' in the record of any disagreement at anytime between the testator and the sons who are the contestants in this action.

It is true that a person has the right to change his mind with respect to the disposition of his property, by will or otherwise; however, where as in this case, the will disinherits all of his sons without any apparent reason and designates as his sole beneficiary his daughter with whom he had lived for two years prior to the making of the will, and during which time he had been under her constant domination such as is evident in the instant case, the situation requires strict scrutiny by the courts. In re Olson’s Estate, 227 Minn. 289, 35 N.W.2d 439, 445, the Supreme Court of Minnesota quoted with approval the following from Swenarton v. Hancock, 9 Abb.N.C. 326, 362:

“ ‘Every testator has, of course, the right to change radically, and even arbitrarily, the manner of disposing of his property; and, in the absence of fraud or imposition, courts will sustain his action in this respect. But when it has been found that an unnatural change has been made in a sick mail’s will, and one apparently contrary to his previous fixed and determined 'purpose, it is the duty of the courts to scrutinize closely the circumstances, with a view of ascertaining whether the act was free, voluntary and intelligent, or whether it was a substitution of the volition and interest of another, who by some irresistible influence secured the change.’ ”

After a careful consideration of the lengthy record and all of the facts and circumstances in the case, the advanced age and senile condition of the testator, his physical ailments which undoubtedly affected the independent exercise of his judgment; the fact that he was under the constant care and supervision of Martha.Whe-lan for .two years immediately prior to the execution of the will, and her opportunity to exert pressure upon him to make her the sole beneficiary of his will; the fact that on Thursday preceding the date of the , execution of the will she induced him to change a life insurance policy so as' to make her the beneficiary thereunder; that he disinherited his eight sons and the children of a deceased son, and further provided that any and all advances made to his sons in his lifetime should’ be' repaid to his estate which would thus become the property of Martha B. Whelan, the sole beneficiary under the will, — we have concluded that there was an issue of fact as to whether at the time of the execution of the will the testator was a free agent or was acting un-' der influence that had been exerted upon him by his daughter Martha B. Whelan the proponent of the will. The jury found that the purported will was not the will of Henry Burris. We are of the opinion that the evidence is sufficient to support the verdict and that it should not be disturbed.

The judgment is reversed and the case remanded to the district court with directions to reinstate the verdict and the judgment entered thereon.

BURKE, C. J., and MORRIS, GRIM-SON and JOHNSON, JJ., concur.

On Petition for Rehearing

SATHRE, Judge.

The proponent has petitioned for a rehearing. She asserts that she made a motion.in the district court for judgment notwithstanding the verdict or in the alternative for a new trial. .The motion for judgment-notwithstanding the verdict was granted. That left undetermined the'motion for a new trial. Under the rules’ announced in several decisions of thi.s court the right of the proponent to move for a new trial in the district court still remains. Nelson v. Grondahl, 13 N.D. 363, 100 N.W. 1093; La Bree v. Dakota Tractor & Equipment Co., 69 N.D. 561, 288 N.W. 476; Smith v. Knutson, 76 N.D. 375, 36 N.W.2d 323. Accordingly leave is. granted proponent to renew her motion for a new trial, such motion to be made within thirty days from the date of filing remittitur herein. If such motion is not made, judgment is directed to be entered for contestants in accordance with the original opinion herein.

Rehearing denied.

BURKE, C. j., and MORRIS, GRIM-SON and JOHNSON, JJ.