Hobelsberger's Estate, In re, 10668

• Citation: 85 S.D. 282,181 N.W.2d 455
• Decision Date: 19 July 1967
• Docket Number: No. 10668,10668
• Parties: In the Matter of the ESTATE of John HOBELSBERGER, Deceased. . Dec. 4 1970. Lacey & Lacey, Sioux Falls, Beardsley, Osheim & Wagner, Watertown, for appellants. Gribbin & Burns and Thomas G. Ries, Watertown, for respondent. RENTTO, Judge. John Hobelsberger died on
• Court: Supreme Court of South Dakota

Page 455

181 N.W.2d 455

85 S.D. 282

In the Matter of the ESTATE of John HOBELSBERGER, Deceased.

No. 10668.

Supreme Court of South Dakota.

Dec. 4 1970.

Lacey & Lacey, Sioux Falls, Beardsley, Osheim & Wagner, Watertown, for appellants.

Gribbin & Burns and Thomas G. Ries, Watertown, for respondent.

RENTTO, Judge.

John Hobelsberger died on July 19, 1967, survived by 27 nieces and nephews and seven grandnieces and grandnephews, his only heirs. In this proceeding the validity of a will which he executed on November 22, 1966, is challenged by nine nieces and nephews. Its admission to probate was sought by his designated executor.

The will in question, after providing for the payment of debts and funeral expenses, left the remainder of his estate to Phyllis Raml, a grandniece. In the event that she did not survive him the property was to go to her husband, Ralph Raml, who was also named executor. If neither of these survived the testator, it would then go to their son Thomas. His estate consisted of 160 acres of farm land in Codington County, South Dakota, appraised at $7,500 and cash, bonds and miscellaneous personal property valued at approximately $9,400.

The challenge of the contestants was based on the following grounds: (1) lack of testamentary capacity; (2) undue influence on the part of the Ramls; and (3) improper execution. The county court, without a jury, held a hearing on the matters in issue and made findings of fact favorable to the proponent and admitted the will to probate. From this the contestants appealed to the circuit court. After hearing testimony for three days and considering the briefs of both parties, the court made similar findings and entered judgment dismissing the appeal and affirming the order of the county court. This appeal is from that judgment.

The testator at the time of executing the will in question was 80 years of age. He had never married and lived alone on his farm near Kranzburg, South Dakota. He had resided in the same general area all of his life. The Ramls lived on and operated a farm about two miles from his. They had made their home there since 1950. Over the years they rented a portion of his farm and for about five years before his death they rented it all, but he continued to reside on it. During these years they pretty much looked after him. Their relations with him seem to have been friendly and cordial and their visits with each other rather frequent. During late years the other heirs had not lived in as close proximity to him nor have they been with him as often as the Ramls.

While attending church on Sunday, October 23, 1966, he became ill during the service and was taken to the St. Ann's hospital in Watertown, South Dakota, by Mr. Raml. It was thought that he had a heart attack. On October 24th he became the patient of Doctor Brevick who diagnosed his indisposition as intermittent cerebral insufficiency. He remained there until November 19th, when he was transferred to the Burgdorf Nursing Home in the same city. During his hospitalization he told the Ramls that he wanted to see an attorney about some legal matters and the preparation of a will. He did not indicate any particular attorney, but suggested that they ask their lawyer to call on him. After several requests they mentioned the matter to Thomas Green who had acted as their attorney.

About a week later Mr. Green went to the hospital and interviewed the testator. This was about the 10th of November. After discussing some apparent defects in the title to his farm which he wanted corrected, the testator told the attorney what provisions he wanted in his will. Their discussion lasted about 45 minutes. After the completion of the interview the attorney returned to his office, with his notes, and prepared a will in compliance with his instructions. About the 17th of November he took the will to the hospital. Because testator's brother, who later predeceased him, was in the same room as a patient it was not discussed or executed. Soon after his transfer to the nursing home he sent word by the Ramls that he wanted to see the attorney about his will.

On November 22nd the attorney and a secretary went to the nursing home. The Ramls were there visiting the testator. They had not known that the will was to be signed that day. It was read to him by the lawyer, after which he indicated that it was they way he wanted it. The testator subscribed it with his mark in the presence of the attorney and secretary as attesting witnesses. It was then taken to the lawyer's office where it remained until after the testator's death. On December 27, 1966, he was dismissed from the home because he had become a problem patient. He was readmitted to the hospital while a facility was found available to care for him. On January 3, 1967 he left the hospital and was taken to a nursing home in Clear Lake, South Dakota, where he remained until his death.

That the testator was aged and infirm when he executed the will is not questioned. As stated, the doctor diagnosed his illness when first admitted to the hospital as intermittent cerebral insufficiency. He did not classify it as a stroke. Apparently it was more in the nature of a fainting spell. He testified that during his hospitalization the testator had an occlusion of a cerebral artery. This he characterized as a mild stroke.

While these facts are material on the question of testamentary capacity they are not controlling. In re Hackett's Estate, 33 S.D. 208, 145 N.W. 437; In re Brown's Estate, 55 S.D. 53, 224 N.W. 942; In re Blake's Estate, 81 S.D. 391, 136 N.W.2d 242. The matter in issue is the condition of his mind when the will was executed. One may be physically weak and aged and still possess a sound mind. Page on Wills, Vol. 1, (Bowe-Parker Revision) § 12.27.

Six of the contestants, two farmer neighbors of the testator--a father and son, and a woman who helped in his care at the Burgdorf home testified for the contestants on the issue of testamentary capacity. These contestants had visited the testator numerous times when he was in the hospital and the nursing homes. Their testimony was to the effect that he was not able to recognize them, or to speak intelligently, or to understand them when they spoke to him. They observed that his eyes were blank and watery. The two neighbors who also visited him often during this period said he was unable to communicate with them. The nurse observed that he was unable to communicate and seemed obsessed with sex. This latter trait was mentioned by the other woman testifying for the contestants. All of these witnesses were of the opinion that he did not possess the mental capacity to make a will.

However, a retired barber, who had been his longtime neighbor on the farm, testified as to conversations he had with the testator on numerous visits with him during his last illness. All of these seem to have been lucid and the testator had no difficulty recognizing him and introducing him to others who happened to be in the room. During one of these visits he made arrangements with the witness to have his hair trimmed by him while in the hospital. The barber's son, who had known him for 50 years, gave similar testimony. He also stated that the testator had remarked that he didn't have enough property for all of his relatives, and told him he was going to leave it to the Ramls because they had looked after him. Both of these witnesses were of the opinion that during the time in question the decedent was mentally competent. The conversations they related having with him support this conclusion.

The attesting witnesses and the Ramls all testified that he was mentally competent to make a will. Another witness for the proponent was the vice president of the bank at Kranzburg, where testator did his business, and who had been acquainted with him for 40 years. He had visited with him at the hospital and the Burgdorf home during his last illness. He testified concerning several conversations which they had which appear to have been entirely normal. It was his opinion that the testator understood the nature and extent of his property and was capable of making a rational disposition of it. It was his view that he was of sound mind. He said that during that time the testator's mental condition was about the same as it was previous to his hospitalization.

The nurse's records for the period of his first hospitalization were stipulated into evidence. They are largely descriptive of his physical condition. While they refer to the patient as being somewhat confused shortly after he was hospitalized and that he was dizzy on one occasion, they also mentioned the fact that during the latter part of his stay he was alert and coherent. It is fair to infer that he had his worst days when suffering his mild stroke. After that he appears to have improved to the point of enjoying his visits during which he was cheerful and talkative. This continued to the time of his discharge.

Doctor Brevick saw the patient every day he was in the hospital. He responded well to treatment. He also saw him at the Burgdorf home and the second time he was in the hospital. During his first hospitalization he talked with the doctor about making a will. Apparently Mr. Green had inquired of the doctor if he was competent to make a will. This caused the doctor to ask questions of him each day so as to be able to determine his competency. It was his opinion that the testator was of sound mind during this period and that when he was moved to the Burgdorf home he was competent.

On December 27th when he was moved from the home to the hospital the doctor again examined him. At that time he was suffering a chronic brain syndrome. In layman's language that is a condition that is close to senility. When pressed on cross-examination as to whether he was then mentally incompetent the doctor, testifying without his notes which apparently had been lost, said that he could not answer...