Anders Estate, In re

• Decision Date: 21 February 1975
• Docket Number: No. 11408,11408
• Citation: 226 N.W.2d 170,88 S.D. 631
• Parties: In the Matter of the ESTATE of J. Olson ANDERS, Deceased. Viola LABY and McPherson County Welfare Department, McPherson, Kansas, Plaintiffs and Appellants, v. Robert THOMPSON, Executor of the Estate of J. Olson Anders, Deceased, and Robert Thompson, Individually, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 170

226 N.W.2d 170

88 S.D. 631

In the Matter of the ESTATE of J. Olson ANDERS, Deceased.

Viola LABY and McPherson County Welfare Department, McPherson, Kansas, Plaintiffs and Appellants, v. Robert THOMPSON, Executor of the Estate of J. Olson Anders, Deceased, and Robert Thompson, Individually,

Defendants and Respondents.

No. 11408.

Supreme Court of South Dakota.

Feb. 21, 1975.

Charles E. Gorsuch, Aberdeen, for plaintiffs and appellants.

Sam W. Masten, canton, for defendant and respondent.

DUNN, Chief Justice.

This is a will contest. On the 26th of June 1973, Robert Thompson, the executor named in the last will and testament of J. Olson Anders, filed a petition for the probate bate of the Anders will. The appellants, Viola Laby and the McPherson County Welfare Department of McPherson, Kansas, appeared on the date of the hearing and contested the probate of the will. The case was tried on September 27, 1973, and the trial court entered findings of fact, conclusions of law and a judgment upholding the will. The contestants appeal, contending that the trial court was in error in finding (1) that there were no deficiencies in the execution of the will which would invalidate the instrument, and (2) that the testator was competent and not subject to undue influence at the time of the execution of the will. We affirm.

In 1968, subsequent to his wife's death, decedent executed a new will. This instrument was cancelled by written notation thereon. A second will was executed in 1970. This will was substantially similar to the first. Both wills contain substantial bequests to certain relatives, most notably his nephews by marriage and four named charitable organizations. Both wills also named a local bank as executor. The second will was found torn into many pieces in decedent's home after his death.

In April 1973, decedent was admitted to the hospital. His doctor testified that he complained of weight loss, lack of appetite and constipation. The doctor further testified that the decedent was mentally alert. Both parties agree that prior to this time decedent was intelligent, articulate and mentally alert. Decedent was a retired college professor and had long taken care of his business affairs. While in the hospital, decedent phoned attorney Carlyle Richards informing him that he desired a new will and outling the new provisions thereof. Richards had also drawn the 1970 will. On April 17, 1973, Richards went to decedent's hospital room with a draft of the proposed will. Richards testified that he read the will in full and explained it in detail to the decedent and that the latter approved it. Richards and a nurse's aide witnessed decedent's signature. Decedent named seven charitable organizations and Robert Thompson as beneficiaries, and also named Thompson as executor. Decedent was released from the hospital shortly thereafter. After a little more than a month at home, during which it appears he continued to walk downtown and handle his affairs, he died on June 19, 1973.

Robert Thompson began teaching at Northern State College in 1948, the same year that decedent began teaching at Northern. Thompson testified that after the death of decedent's wife it was his habit to visit with decedent at the latter's home several times a week. The average visit lasted under an hour, and seems to have been marked by professional discussions. Thompson testified that decedent seemed to appreciate these visits because of his loneliness. Thompson was not present at the execution of the new will nor did he assist in its preparation, Decedent had asked Thompson to act as executor under a new will, but according to Thompson he did not know of any provision for him prior to the execution of the new will. Thompson did none of decedent's business until the latter's last illness and then it was restricted to making bank deposits for him. The estate is valued at approximately $100,000, and Thompson's share would be about 11%.

With regard to the first contention of contestants as to the deficiencies in the execution of the will, the testimony of Hattie Gesling reveals that the testator did declare to her that the instrument in question was his will and that he did request that she act as a witness. Contrary to the assertions of the appellants, this uncontradicted evidence is sufficient to uphold the trial court's finding that the will was properly executed and witnessed in this respect. In re Thorpe's Estate, 1954, 75 S.D. 337, 64 N.W.2d 296. Appellants also contend that the attesting witnesses failed to write their respective names and places of residence according to SDCL 29--2--6(5). This omission does not affect the validity of the will.

The appellants next contend that the trial court was in error in finding that 'at the time of the making and the execution of the Will, J. Olson Anders was competent, free from duress, menace, fraud or undue influence * * *.' The parties agree on the rule governing our review here:

'Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' SDCL 15--6--52(a)

Subject only to statutory restrictions, a competent testator may dispose of all or any part of his estate without regard to familial relationship. SDCL 29--2--3; In Re Vetter's Estate, 1954, 75 S.D. 417, 66 N.W.2d 519. In finding that decedent possessed requisite testamentary capacity the trial court properly placed the burden of proof with respect to such issue on the proponent. Johnson v. Shaver, 1919, 41 S.D. 585, 172 N.W. 676.

In arguing that decedent lacked testamentary capacity, appellants make much of the fact that decedent was eighty-one years old and hospitalized at the time of the execution. They concede that decedent was mentally vigorous and had demonstrated a certain 'brilliance' in managing his business affairs prior to this hospitalization. They rely unduly on the fact that the decedent was somewhat physically weakened during this period. We have held that mere physical weakness is not determinative of unsound mind. In Re Hackett's Estate, 1914, 33 S.D. 208, 145 N.W. 437; In re Brown's Estate, 1929, 55 S.D. 53, 224 N.W. 942. The proper inquiry was set out in Petterson v. Imbsen, 1923, 46 S.D. 540, 194 N.W. 842:

'No doubt the testatrix at the time of the execution of the will was suffering from great bodily weakness. * * * The law requires soundness of mind, but by this is not necessarily meant that degree of intellectual vigor which one has in youth or that is usually enjoyed by one in perfect health. * * * for the purpose of making a will one has a sound mind who, without prompting, has full and intelligent knowledge of the act engaged in, and full knowledge of the property he...