Appeal from a district court judgment affirming an order of the probate court allowing decedent's last will and testament.
Peter H. Peterson, decedent, on September 7, 1948, which was several weeks prior to his death, executed his last will and testament, which, upon his request, had been drawn by the cashier of the Twin Lakes State Bank, a layman, who had never been admitted to the practice of law. The trial court specifically found that at the time the will was drawn "no emergency existed nor had the imminence of death left insufficient time to have this will drawn and its execution supervised by a licensed attorney at law."
Appellants are heirs at law for whom no provision was made in the will. The only issue raised is whether a will which is otherwise valid is invalid and should be given no legal effect by reason of the sole fact that it was drawn by a layman — who at the time the will was drawn was not admitted and licensed to practice as an attorney at law — in direct violation of M.S.A. 481.02, which provides:
Subd. 1. "It shall be unlawful for any person or association of persons, except members of the bar of Minnesota admitted and licensed to practice as attorneys at law, * * * for or without a fee or any consideration, to prepare, directly or through another, for another person, * * * any will or testamentary disposition or instrument of trust serving purposes similar to those of a will, * * *."
Subd. 8. "Any person or corporation, or officer or employee thereof, violating any of the foregoing provisions shall be guilty of a
"In lieu of criminal prosecution above provided for, such county attorney or the attorney general may, * * * proceed by injunction suit against any violator of any of the provisions above set forth to enjoin the doing of any act or acts violating any of said provisions." (Italics supplied.)
Does it follow that the will itself is tainted with such illegality as to be void by reason of having been drafted in a prohibited manner? Did the testator, in employing an unlicensed layman, so participate in the performance of a crime that his attempt to make a will resulted in a nullity? In considering the issue, it should be borne in mind that the direct violator of the statute, the unlicensed scrivener, is not a beneficiary under the will and is not a party to this litigation. He is in no manner seeking a fee for his services or any other benefit from his unlawful act. In other words, we are not asked to aid the wrongdoer himself. See, 5 Williston, Contracts (Rev. ed.) § 1630; Bosshard v. County of Steele, 173 Minn. 283, 217 N.W. 354; Goodrich v. N.W. Tel. Exch. Co. 161 Minn. 106, 201 N.W. 290. A different situation arises where an unlicensed practitioner seeks to recover fees for his performance of legal services. See, Annotations, 4 A.L.R. 1087 and 42 A.L.R. 1228; Giont v. Crown Motor Freight Co. 128 N.J.L. 407, 26 A.2d 282.
In most instances, decisions concerned with the validity of instruments executed in violation of a statute involve the issue of the enforceability or nonenforceability of contracts. Where an attempt is made to enforce a contract which was made in violation of a statute, many considerations enter which are not present where the validity of a will is assailed on the sole ground that it was drawn by an unlicensed scrivener. Nevertheless, the contract cases are illustrative of certain fundamental principles which are controlling. See, 5 Williston, Contracts (Rev. ed.) § 1630.
Section 481.02 had its origin with G.S. 1866, c. 88, § 8, which simply prohibited any person not a lawyer to appear, to maintain, or defend in any proceeding in court.
"It must be conceded to be an established principle of law that when a statute prescribes a penalty for the doing of a specific act, that is prima facie equivalent to an express prohibition; and that, when the object of such an enactment is deemed to have been the protection of persons dealing with those in respect to whose acts the penalty is declared, or the accomplishment of purposes entertained upon grounds of public policy, not pertaining to mere administrative measures, such as the raising of a revenue, the act thus impliedly prohibited will, in general, be treated as unlawful and void as to the party who is subjected to the penalty. This rule is not, however, without qualification. The question is one of interpretation of the legislative intention. The imposing of a penalty does not necessarily give rise to an implication of an intention that, where an act is done which subjects a party to the penalty, the act itself shall be void, and of no legal effect; and if it seems more probable, from the subject and the terms of the enactment, and from the consequences which were to be anticipated as likely to result from giving such an effect to the penal law, that it was not the intention
In the De Mers case, as in the instant case, a specific penalty was imposed for the wrongful act of one party, but the statute was silent as to the consequences to the other party and as to the validity of a written instrument executed in connection with or in reliance upon such wrongful act. In ascertaining legislative intent under such circumstances, we may well apply the maxim that "the expression of one thing is the exclusion of another." Sacketts Harbor Bank v. Codd, 18 N.Y. 240; Laun v. Pacific Mut. L. Ins. Co. 131 Wis. 555, 111 N.W. 660, 9 L.R.A.(N.S.) 1204; 6 Dunnell, Dig. & Supp. § 8980. As indicative of legislative intent to rely upon the penalty alone for accomplishing the statutory purpose, without holding the will itself void, is the statutory emphasis placed upon the enforcement of the penalty. By express terms, the statute declares it to be the positive duty of county attorneys to institute criminal proceedings against any unlicensed practitioners who draw wills — in the absence of an actual emergency when no lawyer is available. The only alternative in lieu of criminal prosecution is the initiation of proceedings to enjoin future acts of violation.
5-6. Where a statute specifically prohibits and penalizes a certain act by the members of one class for the protection of the members of another class, a statutory construction should not be adopted which attributes to the legislature an intent to bring about a consequence that is inconsistent with the protective purpose for which the law was enacted. Where a penalty is imposed upon one party and not upon the other, they are not to be regarded as in pari delicto. Irwin v. Curie, 171 N.Y. 409, 414, 64 N.E. 161, 162, 58 L.R.A. 830. A testator is not in pari delicto with an unlicensed practitioner. He is a member of the class the statute was designed to protect. See, Webster v. U.S.I. Realty Co. 170 Minn. 360, 212 N.W. 806.
Appellants cite Buckley v. Humason, 50 Minn. 195, 52 N.W. 385, 16 L.R.A. 423, 36 A.S.R. 637, in support of their contentions. In that case the plaintiff, who conducted a Chicago real estate brokerage business without having the license required by an ordinance of that city, was denied the right to recover his brokerage commissions, on the ground that where a business is made unlawful for unlicensed persons any contract made in such business is void. In the Buckley case, the wrongdoer himself was seeking, to his own advantage, to enforce a contract made in violation of law. In the instant matter we do not have that situation. It is also significant that the earlier De Mers decision (39 Minn. 158, 39 N.W. 98) was not called to the attention of or considered by the court. In a much later decision, Vercellini v. U.S.I. Realty Co. 158 Minn. 72, 196 N.W. 672, the court, after citing Buckley v. Humason, supra, expressly took notice of the error in the assumption that all contracts made in violation of law are necessarily void. In that case, the purchaser of certain lands under an investment contract made in violation of the blue sky law (L. 1917, c. 429, as amended by L. 1919, c. 105) was permitted to recover what he had paid. The court said therein that the purchaser was a member of the protected class and that
7. Our attention is directed to In re Estate of Calich, 214 Minn. 292, 8 N.W.2d 337, wherein this court discussed the serious losses resulting to innocent people from the unlicensed practice of law by laymen, and then, after vigorously condemning such unlawful practice, urged the prompt and aggressive prosecution of all violators. This court therein expressed a reluctance to give effect to a will drawn by a layman in violation of the statute, but it is significant to note that the alleged will was drawn by a layman who stood to profit by his own wrongful act, in that he was the sole beneficiary. What is of more significance is that the actual decision therein was not based upon any illegality resulting from an unauthorized practice of law, but on a determination that the finding of the trial court that no will had ever been executed was sustained by the evidence. It is elementary that no decision has any authoritative value beyond the proportions established by its controlling facts.
Appellants cite certain cases wherein unlicensed practitioners have appeared in court, and in consequence thereof the proceedings have been set aside and spoken of as void. These cases illustrate the confusion which results when the distinction between the words "void" and "voidable" is not observed. They also illustrate that the authoritative value of a decision is limited to the scope of its controlling or decisive facts. In practically all these
8. It follows that a will does not become invalid and void by reason of the sole fact that it was drawn for the testator — when no emergency existed which left insufficient time to have it drawn and its execution supervised by a licensed attorney at law — by a layman in direct violation of § 481.02, which prohibits and penalizes as a misdemeanor the act of an unlicensed practitioner in preparing a will for another.
The judgment of the trial court is affirmed.
MR. JUSTICE FRANK T. GALLAGHER took no part in the consideration or decision of this case.