The instruments involved in this controversy were executed on September 16, 1921. According to the undisputed evidence, they were executed under the following circumstances: — Mary Cole was a woman some eighty-three years of age, and possessed of considerable property. The plaintiff, Goodin, was a relatively young man, who had made his home at Mary Cole's house for some six or seven years. Shortly before the execution of the instruments in suit Mary Cole became quite ill and it was determined that she should be taken to a hospital in Bismarck for treatment. On the day she was to be taken to the hospital the plaintiff, Goodin, went to a banker named De France and caused De France to prepare the will and contract under which Goodin claims in this suit. There is not the slightest evidence that Mary Cole had suggested that these instruments be prepared or that she had expressed any desire to that effect. So far as the evidence shows, Goodin, and Goodin alone, was the moving spirit in that matter. De France testified that when Goodin came and requested him to prepare these instruments he (Goodin) brought along descriptions of some of the property and that the descriptions of the remainder of the lands were obtained from a certain plat book. After De France had prepared the instruments he and a man named Savage and another named Semple, all at the request of Goodin, went over to Mary Cole's house. Savage and Semple were asked to come along for the purpose of acting as subscribing witnesses upon the instruments. The instruments were read to Mary Cole by Savage, and Goodin asked her to sign them but she expressed unwillingness to do so and did not sign them. Both DeFrance and Savage testified positively that during this discussion she stated that she had some other friends that she wanted to remember.
It is also undisputed that during this conversation she stated that she had already given Goodin an automobile and that when he stated the automobile was worn out she countered by saying that he had worn it out and that she further said that he had or would be paid for what *Page 560 he had done for her. The conditions under which Goodin had these instruments presented to Mary Cole for execution, and asked her to execute them is described by Savage, in his testimony, thus: "She was suffering some. She had been sick and I think the doctor had ordered her to be taken to the hospital, and she was able to walk over to the train. When we went there it was almost train time and she was all prepared to take the train. She had everything on except her hat, all ready to take the train, and I made the remark that she would have to hurry to catch the train, it was that close to train time."
Shortly after Mary Cole left for Bismarck. The plaintiff, Goodin, accompanied her, and it was on the train between Braddock and Bismarck that the instruments in suit here were executed. The only evidence as to what occurred at the time the will and contract in suit were executed is the testimony of one Atkins, who signed as one of the subscribing witnesses on the will, and acted as Notary Public in taking the acknowledgment of the contract. Atkins is also one of the attorneys for the plaintiff in this action. Atkins testified that he assisted Mary Cole in getting on the train at Braddock; that shortly after the train had started the plaintiff, Goodin, came to where Atkins was sitting in the car and stated that Mary Cole desired to see him; that he (Atkins) then went over and explained the contents and legal effect of the papers to her and that she indicated her desire to execute them; that during all this time the plaintiff, Goodin, was sitting beside Mary Cole. Atkins testified:
She and Joe were sitting opposite me.
Q. You say you read the paper called contract here over to her?
A. I did. I didn't read it word for word, but I explained it's contents and legal effect to her.
Q. What did you do about the will? — did you read them separately?
A. No, I told her she was executing a contract wherein she contracted to will her property to Mr. Goodin, and pointed out Mr. Goodin to her. And she signified her wish to execute it, and I got the other gentleman to come over and she signed them.
Q. What was the paper written on at the time the names were signed there?
A. She had a small grip that we put in our laps. *Page 561
Q. Mrs. Cole seem to be in any pain at that time?
A. She seemed to be in some physical pain.
These are the conditions under which the instruments in suit were executed. Here we have an old woman — a woman eighty-three years of age — very ill and in pain. She is about to be taken to a hospital in a city some thirty miles away. All these things are known to a certain man who for some six or seven years has been an inmate of her home, who has no property of his own, but is aware of her property holdings. He causes certain instruments to be prepared whereby, upon her death, all her property becomes his. He causes these papers to be presented to her for signature and specifically asks her to sign them just as she is about to be taken to a hospital. She declines to execute the instruments. In doing so, she alludes to the fact she has already given him an automobile, and further says that he has been or will be paid for anything he has done for her. She further gives as a specific reason for declining to execute the instruments that the disposition made of the property in such instruments is not in accord with her desires; that there are certain other persons to whom she desires "to remember," that is, that there are certain other persons to whom she desired to make bequests. Immediately following this occurrence she leaves her home for the hospital. Within a short time, (not more than one or two hours) thereafter, while she is on her way to the hospital the plaintiff procures an attorney who is riding on the train to go over the instruments with her. He explained the contents and legal effect of the instruments to her but did not read them word for word. While this is being done the man who has caused the instruments to be prepared and who only a short time before asked her in vain to execute them, is sitting beside her in the seat in the railroad coach. These are the only persons present and participating in this conversation. At this time she signs her name to the instruments although no change has been made so as to provide for the bequests to the other persons she had stated only a short time before that she desired to "remember" in her will. At this time, also, she gives such evidence of pain and suffering that it is obvious to the witness. The instruments which she signed at this time are in the record and her signature thereto is almost illegible. These are the conditions under which the instruments under which plaintiff claims were executed. *Page 562
After her arrival at Bismarck Mary Cole was taken to the hospital where she remained for a short time and was then removed to the home of a friend where she subsequently died. Some time prior to her death she executed another will, wherein she made bequests to a church at Braddock, her brothers and sisters and certain person who had befriended her during her lifetime, including a bequest to the plaintiff, Joe Goodin, and bequeathed the remainder of her property to the friend in whose house she was then being cared for.
There is no contention that there was any prior agreement between the parties, and that Goodin rendered any service in reliance thereon. So far as the record shows the scheme or arrangement evidenced by the instruments in suit were born in the mind of Goodin, and sought to be carried into effect, when it became apparent that Mary Cole was in such serious condition that she must be removed from her home and taken to the hospital in the city of Bismarck. In view of her advanced age and serious ailment her life expectancy was not long. I think no one can reasonably conclude that the real object of the instruments in suit was to make provision for the maintenance and care of Mary Cole. Their real purpose was to obtain Mary Cole's property for Joe Goodin. While much of the evidence offered by the defendants was excluded it nevertheless appears that Goodin is a man wholly without means, and in fact had no capacity to provide for Mary Cole unless he did so out of her property. While a comparatively young man he apparently had for six or seven years been satisfied to live largely at the expense of Mary Cole. He in no manner changed his course of conduct as a result of the contract. He proceeded to do after the execution thereof, what he had been doing before, namely, make his home at Mary Cole's house and receive his sustenance from her property. I am of the opinion that the plaintiff is not entitled to any relief in this action. I believe the judgment should be reversed and the action dismissed. *Page 563