¶1 (dissenting). I am not able to agree with the *242 majority of the court and express some of my views of the case as follows:
¶2 At, and for several years prior to, the execution of the will, the decedent and Milton and Maude lived together as a family in the same house. The decedent was seriously afflicted with diabetes and neuritis and had not been able to walk for the past seven or eight years. She spent her time in a wheel chair and her wants were attended to by Milton, though assisted to some extent by Maude. The will was drawn by Mr. Trygstad, though the evidence does not show when or where it was drawn, nor at whose direction. The will was signed by a Mr. Gullick and D'r. Grove, who signed as subscribing witnesses. While the will was being signed Milton was in an adjoining room where he could hear and see what was said and done by his mother and the others in the room with her, but he does not appear to have taken any part in what was being done at that time, and testified that he did not know the nature of the business that was being transacted. This statement was palpably false, and on cross-examination he admitted that it was false. Maude was not in the house at that time.
¶3 The trial court prepared and filed a memorandum opinion setting out many of the salient facts in the case which opinion, in part, reads as follows:
¶4 “It is well to consider the facts surrounding the execution of said will by the deceased. At the time Josephine Armstrong executed the will the evidence clearly shows that she was a ¡ad¡y about eighty years of age, that she had been almost an' invalid for nearly fifteen years and for several years had been in a wheel chair. . She had been suffering for several years from diabetes and was in a weakened condition at the time of the signing of the will and at that time was living in a home with Milton her son and Maude her daughter. The evidence also discloses that there had been trouble between Milton and his brother Charles Herbert for several years over property relations. Such trouble proceeded to such an extent that a suit was pending between them in the Court at that time. Milton was an unmarried man, living at home and looking after his mother’s property and he and his sister attended to her physical needs and care. The brother 'Charles Herbert, the plaintiff herein, by reason of the disagreement between 'himself and his *243 brother did not go to his mother’s home or at least had not been there for a long time prior to the execution of the will. But it appears from the evidence that there was no illwill on the part of the mother towards her son Charles, but that by reason of the son Milton living with her she listened to his side of the trouble between himself and his brother and at times appeared to feel that Charles was in the 'wrong in the matter.
¶5 "The witness C. R. Osier, tenant on a farm belonging to deceased, testified that he was at the home of Josephine Armstrong in September, 1930, and talked with her concerning her son’s troubles between themselves and his testimony is as follows:
¶6 " ‘She said she couldn’t see why this trouble should come as she thought just as much of Bert as she did of the others and Bert would get his share just as much as the others.’
¶7 “•On >the day of the execution of the will Mr. Trygstad1, attorney for the defendants, came to the Armstrong home prepared to draw the will and the- evidence discloses that Milton called the witness to come to the Armstrong home to witness the execution of the will and he was the only member of the family (except the mother) present at the time such will was executed and during the time it was being executed he sat in another room from the one occupied by his mother and Mr. Trygstad and the witness but only a few feet away and there was a double door opening from the room in which he was into the room in which his mother and the others were and that he heárd and knew what was going on.
¶8 “Both witnesses testified that Mrs. Armstrong was very weak and Dr. Grove testified that she said at the time she signed the 'will: “Oh, Doctor, this is the hardest thing I ever did in my life’ then added T am making my will.’ The witness, Dr. Grove, was then asked the following question: ‘State whether she appeared to be in mental distress'?’ and he answered ‘She cried at that moment when she said it.’ ”
¶9 “The evidence further discloses that the mother had made an earlier will in which all of the children were named as beneficiaries but that such will has been destroyed and all of the children knew about it but that when this will was made the Plaintiff Charles Herbert Armstrong kne'w nothing of it until after his mother’s death and that he was living in the town of Arlington, S. D., *244 where his mother lived and only four or five ¡blocks away from her home. That Josephine Armstrong died on or about March 8th, 1932, and some 16 months or thereabout after the execution of the will.
¶10 “That by reason of the desire of both plaintiff and defendants' to have said case tried upon the transcript of evidence this Court did not have the benefit of having the witnesses appear in person and testify before him. . However, it is quite apparent that the testimony of Milton EL Armstrong was biased and evasive; especially as to his connection with the will having been executed by his mother. It appears that Milton and Charles had a great deal of trouble over their property relations for several years prior to their mother’s death and no doubt they were both to blame for this trouble, but it does appear that Milton took advantage of his mother’s weakened condition and tried to prejudice her and get her to become biased in his favor as against Charles. Notwithstanding such actions on the part of Milton it appears that the mother had a mother’s love for all of her children and would not have disinherited Charles had it not been for the undue influence practiced upon her by Milton. She at the time of the execution of said will and for some years prior being practically an invalid and being affected 'with a disease the tendency of which is to weaken the mental faculties of the person affected. It seems to me quite clear that the purported last will and testament of Josephine Armstrong, deceased, which appears to' have been executed on November 3rd, 1930, was executed by her under undue influence on the part of Milton' E. Armstrong and that the sister in some measure aided her brother Milton in influencing the mother to execute the will disinheriting their brother Charles.
¶11 “The Court therefore holds that the said will, by reason of the undue influence practiced on the said Josephine Armstrong, deceased, was not her voluntary act and deed and therefore is void and should not be permitted or allowed to be probated as and for her last will and testament. The court upholds and sustains the lower court’s decision.”
¶12 There is no doubt -that Mrs. Armstrong told the subscribing witnesses that the document in question was her last will and testament, and that she asked them to■ sign it as witnesses, but it *245 fairly appears from the evidence that she did not know all that was in the will when she signed it.
¶13 Milton engaged Mr. Trygstad to draw the will and gave the directions for the disposition of the property. It is very clear from the evidence that Mrs. Armstrong never read the will herself, and it is also clear from the evidence that the entire will was never read in her presence. Upon this subject, Mr. Gullick, one of the subscribing witnesses, testified: “As far as I know, this instrument had been prepared before I came there. There was no talk whatever while I was here concerning the contents of this Exhibit i. It was read aloud in my presence. I think Mr. Trygsiadi read it as I remember it — Well, I think there was something said about the contents — don’t 'know who read the contents. It wasn’t read in its entirety. This is the side that I saw — I remember see-' ing some handwriting there.” Dr. E. H. Grove, the other witness to the signing of the will, testified: “Bert Armstrong was not pres- • ent when the will was executed but I saw Milton there when I went into the room. I am not positive about Maude. The three of them were living together in the home. Nothing was said on' that occasion in my hearing about calling B'ert in at the time the will was executed. Bert lived a couple or maybe three blocks away. So far as I know no effort was made to have him .present. I was not apprised of the condition of the will at the time I signed as a witness. It was not read in my presence. … The will had been written up before I was called as a witness. I was called by telephone by Milton. He did not tell me what for. I did not know what it was for until I arrived there. … I was there first before Mr. Trygstad or Mr. Gullick arrived. After I arrived Mr. Gullick and Mr. Trygstad came. Milton was already there. He did not explain why he 'had called me. Mrs. Armstrong ■ was the one that spoke to1 me and made a little explanation. Mr. Trygstad asked if she wanted Mr. Gullick and I to sign as witnesses and she responded in the affirmative. I do not know whether she had read the will before that time. What she said with reference to it being her will was the words I gave before that.”
¶14 Indulging the presumption that the decedent knew the contents of the will when she declared that it was her will, such pre *246 sumption was overcome 'by the affirmative evidence' of one of the subscribing witnesses that Mrs. Armstrong did not read the will and that it was not read) in its1 entirety to her. She di'dl not know the contents of the will when she signed it, and it is not entitled to probate.
¶15 Some time after the will in question in this proceeding had been executed Herbert asked his mother if she had made out a second will and she said, “No,” that she had not.
¶16 I am fully satisfied after a careful study of the testimony of all the witnesses who testified at the trial of the case that the facts set out in the memorandum opinion of the circuit court are fully supported by the evidence and that the said decedent was induced to make the said will by the fraudulent misrepresentations and undue influence practiced upon her by the said Milton Armstrong, and that because of said fraudulent and undue influence the said will was not her voluntary act, and therefore a retrial should be had; and when the case is tried it should be tried on the testimony of the witnesses and not upon a transcript of testimony taken at a former trial.