such court has the power to order that they submit to the service of a summons in a civil action brought in this state for the purpose of determining the liability of the estate they represent on a claim or demand not provable in the probate court in the due course of administration. Whether the remedy in case of a refusal to obey the order is by proceedings as for contempt, or by removal from office, is not decided.1 LOST AND DESTROYED WILLS 314. Petition-Proof-Statute-The petition for the probate of a lost or destroyed will, or one which is without the state and cannot be produced in court, shall set forth the provisions of the will, and such provisions shall be embodied in the notice of hearing thereon. The probate court shall take testimony as to the execution and validity of such will, and the same may be established by parol or other evidence. All testimony taken shall be reduced to writing, signed by the witnesses, and filed in said court. A petition for the proof of a will alleged to have been fraudulently destroyed during the lifetime of the testator must state specifically the facts and circumstances constituting the fraud.o1 315. Proof of existence and provisions-Statute-No such will shall be established unless the same is proved to have been in existence at the time of the testator's death, or to have been fraudulently destroyed in his lifetime, nor unless its provisions are clearly and distinctly proved by clear and satisfactory evidence. Since the amendment of 1917 the will may be proved by a copy or draft and by one witness.* It is not essential that a witness should be able to testify to the exact words used. What is required is the substance of the material provisions, their true tenor and effect. Any substantial provision of a lost will, which is complete in itself and independent of the others, may, when proved, be admitted to probate, though other provisions cannot be proved, if the validity and operation of the part which is proved are not affected by those parts which cannot be proved." There must be reasonable search 1 State v. Probate Court, 66 Minn. 246, 68 N. W. 1063. See §§ 250, 1175. 2 G. S. 1913, §§ 7279. See § 253; 23 A. & E. Ency. of Law (2 ed.) 144; 40 Cyc. 1295; 28 R. C. L. 380; Woerner, Am. Law of Adm. (2 ed.) 221; 11 Prob. Rep. Ann. 324; Laws 1921, c. 360 (validating act). 01 In re Kidder's Estate, 66 Cal. 487, 6 Pac. 326. 3 G. S. 1913, § 7280, as amended by Laws 1917, c. 334. See 23 A. & E. Ency. of Law (2 ed.) 144; 40 Cyc. 1299; 28 R. C. L. 382; Woerner, Am. Law of Adm. (2 ed.) § 221; Wigmore, Ev. § 2052; Church, 4 See 23 A. & E. Ency. of Law (2 ed.) 152; 40 Cyc. 1299; Wigmore, Ev. § 2052; Tarbell v. Forbes, 177 Mass. 238, 58 N. E. 873. 5 Tarbell v. Forbes, 177 Mass. 238, 58 N. E. 873; In re Camp's Estate, 134 Cal. 233, 66 Pac. 227. 6 Tarbell v. Forbes, 177 Mass. 238, 58 for a lost will before secondary evidence of its contents is admissible.❜ Due execution and attestation of the lost will must be proved and it must also be proved that the will was in existence at the time of the death of the testator unrevoked, the presumption being that a will once shown to exist and not found after the death of the decedent was revoked. To justify the probate of a fraudulently destroyed will there must be very clear proof of the fraud. Where the existence and genuineness of a will are in issue, the prior and after declarations of decedent are relevant and admissible, not as evidence for the purpose of proving the execution of the will, but for the purpose of corroborating the testimony of others who have testified to its execution.10 The contents of a lost will cannot be proved by the declarations of the testator alone. Such declarations are admissible only in corroboration of other evidence.11 316. Certificate of probate-Letters testamentary or of administration -Statute-When such will is established, the provisions thereof must be distinctly stated and certified by the judge, which certificate shall be filed and recorded, and letters testamentary or of administration with the will annexed shall be issued thereon, in the same manner as upon wills produced and duly proved.12 NUNCUPATIVE WILLS 317. Petition-Proof-Witnesses-Statute-Nuncupative wills, at any time within six months after the testamentary words are spoken by the decedent, may be admitted to probate on petition and notice, as provided for in case of other wills. The petition shall allege that the testamentary words, or the substance thereof, were reduced to writing within thirty days after they were spoken, which writing shall accompany the petition. No such will shall be admitted to probate except upon the evidence of at least two credible and disinterested witnesses.13 VACATION 318. Vacation by action unauthorized-An order, judgment or decree of the probate court admitting a will to probate cannot be vacated or set aside by an action in the district court on the ground of fraud, mistake N. E. 873; In re Patterson's Estate, 155 Cal. 626, 102 Pac. 941. See 26 L. R. A. (N. S.) 654. 7 McConnell v. Wildes, 153 Mass. 487, 26 N. E. 1114; 40 Cyc. 1295; 50 L. R. A. (N. S.) 861. 8 Newell v. Homer, 120 Mass. 277. In re Kidder's Estate, 66 Cal. 487, 6 Pac. 326; In re Johnson's Estate, 134 Cal. 662, 66 Pac. 847. 10 State v. Nieuwenhuis (S. D.) 178 N. W. 976. 11 Ann. Cas. 1915B, 253. 13 G. S. 1913, § 7282. See 253; 23 A. & E. Ency. of Law (2 ed.) 154; 40 Cyc. 1132; Woerner, Am. Law of Adm. (2 ed.) ́ $8 44, 45, 224; 67 Am. St. Rẹp. 572; 11 Prob. Rep. Ann. 13. or any other ground.14 It seems clear that the legislature could not authorize an action in the district court to set aside the probate of a will.15 319. Vacation on motion-Opening default-An order admitting a will to probate may be vacated on motion by the probate court on the same grounds that its other orders may be so vacated.16 A party in interest who failed to appear and oppose the admission of a will to probate may apply to the probate court to vacate its order admitting the will to probate and for leave to appear and oppose its admission.17 Where an application to open a default is denied by the trial court, its action will not be disturbed on appeal unless the record discloses an abuse of discretion in passing upon the excuse for the default and upon the good faith and merit of the claim sought to be asserted by the applicant.18 An order admitting a will to probate cannot be vacated on the ground that a guardian ad litem was not appointed in the proceedings for an infant interested in the estate.19 It may be vacated because of the discovery of a later will.20 Where a will has been admitted to probate a subsequent will of the same testator cannot be admitted without first vacating the order admitting the first will. An order admitting a will to probate may be vacated on the ground that the court acted without jurisdiction.22 The only persons who may move for the vacation of the probate of a will are those who, but for the will, would succeed in some degree to the decedent's estate.23 It is the duty of the court to set aside the probate of a will on its own motion when the fact that the testator was insane at the time he executed the will is brought to its attention. It is immaterial that the time to appeal from the order admitting the will to probate has expired, if the court still has jurisdiction of the estate.24 14 Tracy v. Muir, 151 Cal. 363, 90 Pac. 832; Broderick's Will Case, 21 Wall. (U. S.) 503; O'Callaghan v. O'Brien, 199 U. S. 89; McCormack v. Burns, 89 N. J. Eq. 274, 105 Atl. 70; Stead v. Curtis, 205 Fed. 439; Sutton v. English, 246 U. S. 199; 23 A. & E. Ency. of Law (2 ed.) 138; 40 Cyc. 1252; 28 R. C. L. 396; Woerner, Am. Law of Adm. (2 ed.) § 227; 33 Harv. L. Rev. 568; G. S. 1913, § 7910, is probably not applicable. 15 See Stead v. Curtis, 205 Fed. 439. 10 G. S. 1913, §§ 7211, 7490 (8) (see §§ 52, 904, 1081); In re Mousseau's Will, 30 Minn. 202, 206, 14 N. W. 887; Larson v. How, 71 Minn. 250, 73 N. W. 966. See 28 R. C. L. 395. CONSTRUCTION 320. In general-Intention of testator controlling-Force of rules of construction-The cardinal rule of construction, to which all others must bend, is that the intention of the testator, as expressed in the language used in the will, shall prevail, if it is not inconsistent with the rules of law. Such intention is to be gathered from everything contained within the four corners of the will, read in the light of the surrounding circumstances.25 One of the highest duties resting upon a court is to carry out the intentions of a testator as expressed in valid provisions not repugnant to well settled principles of public policy.26 What is sought in interpretation-the meaning of the words or the meaning of the writer? Neither. What is sought is not the meaning. of the words alone, or the meaning of the writer alone, but the meaning of the words as used by the writer. It is not the meaning of the words in the abstract, for the meaning of the words varies according to the circumstances under which they were used; and not the meaning of the writer apart from his words, for the question is one of interpretation, and what he meant to say, but did not, is foreign to the inquiry. We must seek the meaning of the writer, but we must find it in his words; and we must seek the meaning of the words, but they must be his words, the words as he used them, the meaning which they have in his mouth.27 In the construction of a will the inquiry is not what the testator meant to say, but rather what he meant by what he did say.2 Whatever conjecture may be entertained as to what the testator either intended or would have desired to do, the will must be construed in accordance with what it says and not in accordance with what the testator intended or 25 In re Oertle's Estate, 34 Minn. 173, 177, 24 N. W. 924; Whiting v. Whiting, 42 Minn. 548, 44 N. W. 1030; In re Tower's Estate, 49 Minn. 371, 376, 52 N. W. 27; In re Swenson's Estate, 55 Minn. 300, 308, 56 N. W. 1115; State v. Willrich, 72 Minn. 165, 168, 75 N. W. 123; Yates v. Shern, 84 Minn. 161, 86 N. W. 1004; Brookhouse v. Pray, 92 Minn. 448, 100 N. W. 235; Davis v. Hancock, 95 Minn. 340, 104 N. W. 299; Rong v. Haller, 109 Minn. 191, 198, 123 N. W. 471; Lohlker v. Lohlker, 112 Minn. 273, 277, 127 N. W. 1122; Johrden v. Pond, 126 Minn. 247, 148 N. W. 112; Elberg v. Elberg, 132 Minn. 15, 155 N. W. 751; Long v. Willsey, 132 Minn. 316, 156 N. W. 349 Hutchins v. Wenger, 133 Minn. 188, 158 N. W. 52; Barney v. May, 135 Minn. 28 299, 160 N. W. 790; In re Bell's Will, 28 Bragaw v. Bolles, 51 N. J. Eq. 84, 95, 25 Atl. 947; Clement v. Whittaker, 231 Fed. 940; Menard v. Campbell, 180 Mich. 583, 147 N. W. 556; Comb's Guardian v. Swigert's Executor (Ky.) 200 S. W. 38; In re Mizener's Estate (Pa.) 105 Atl. 46 Birge v. Nucomb, 93 Conn. 69, 105 Atl. 335. 34 would have wished to say.29 It is true that the testator is a despot, within limits, over his property, but he is required by statute to express his commands in writing, and that means that his words must be sufficient for the purpose when taken in the sense in which they would be used by the normal speaker of English under his circumstances.30 A court cannot give effect to an unexpressed intention of the testator, or add a term to the will or modify its language in order to make what seems to the court a more reasonable or proper disposition of the property.31 No violence can be done to the language used. The construction adopted must be such as the language used will reasonably bear.32 The general intention of the testator overrides all mere technical and grammatical rules of construction.33 While the language used in the will controls it must express the intention of the testator beyond mere surmise, conjecture or supposition. There is always danger in going beyond the literal and grammatical meaning of words. Courts should be careful not to substitute a lively imagination of what a testator would have said if his attention had been directed to a particular point for what he has in fact said. On the other hand, to an extent not capable of exact definition, but depending on judgment and tact, the primary import of isolated words may be held to be modified and controlled by the dominant intention to be gathered from the instrument as a whole. These two opposing considerations must be borne in mind.35 The court can give effect to any intention of a testator, not contrary to law, which he has shown by the words that he has used, even though it has not been articulated in formal language, but such intention must appear from the will itself. It cannot be inferred from mere silence; much less can such an inference be founded upon bare conjecture as to what the testator would have said if he had foreseen the events which have happened since his death. The court cannot speculate as to his intentions and make for him such a will as it thinks that he would have made if he had foreseen existing conditions.36 Where it is clear that the testator has made no provision for a contingency which has arisen. since he executed his will, it is not for the court to speculate as to what the testator might have done if the exact situation which has arisen had in truth been in his mind when making his will, but to determine the meaning of the words actually used and apply that meaning to the facts 29 Birge v. Nucomb, 93 Conn. 69, 105 Atl. 335. 30 Justice Holmes, 12 Harv. L. Rev. 420. 31 Empenger v. Fairley, 119 Minn. 186, 137 N. W. 1110. 32 Case v. Young, 3 Minn. 209 (140) ; Yates v. Shern, 84 Minn. 161, 165, 86 N. W. 1004; Wheaton v. Pope, 91 Minn. 299, 306, 97 N. W. 1046. 33 Whiting v. Whiting, 42 Minn. 548, 44 N. W. 1030; Manning v. Manning, 229 Mass. 527, 118 N. E. 676. See § 321. 34 In re Shumway's Estate, 194 Mich. 245, 160 N. W. 595. 35 Eaton v. Brown, 193 U. S. 197. 36 Springfield Safe Deposit & Trust Co. v. Dwelly, 219 Mass. 65, 106 N. E. 554. See § 323. |