Ansted v. Grieve

• Decision Date: 12 August 1930
• Docket Number: 6856.
• Citation: 231 N.W. 912,57 S.D. 215
• Parties: ANSTED v. GRIEVE.
• Court: South Dakota Supreme Court

231 N.W. 912

57 S.D. 215

ANSTED v. GRIEVE.

No. 6856.

Supreme Court of South Dakota

August 12, 1930

Appeal from Circuit Court, Jerauld County; R. C. Bakewell, Judge.

Action by Harry B. Ansted, administrator with the will annexed of the estate of Thomas D. Williams, deceased, against Walter C Grieve. From a judgment for plaintiff and an order denying new trial, defendant appeals.

Reversed.

J. H Lammers, of Wessington Springs, and Miller & Shandorf, of Mitchell, for appellant.

Chas H. Hatch, of Wessington Springs, and Gardner & Churchill, of Huron, for respondent.

BROWN P. J.

At the time of his death Thomas D. Williams was about eighty-five years of age and for more than forty years had resided in Jerauld county, and he owned four quarter sections of land there. He was a native of Wales, a bachelor, and had no near relatives except a brother living in Wales, with whom it appears he had not kept up much correspondence for a long time. Defendant had for thirty-two years been a neighbor and acquaintance of Williams in Jerauld county and had often helped him with farm work and business matters. Williams was a frequent visitor at defendant's home and defendant's wife did many acts of kindness to him, such as washing, ironing, and mending his clothes, baking and cooking for him, and defendant and his wife gave him some care when he was ill and took him on several occasions to town to a doctor. In June, 1927, Williams was taken quite ill and defendant took him to Mitchell to see a doctor. On the 14th of the month Williams became a patient in the hospital at Mitchell, and on Sunday the 19th, George Sickler, in response to a phone call from Dr. Scholl, went to Mitchell and visited Williams at the hospital. He arrived about noon and stayed with Williams until about 11 o'clock at night at which time he procured the signature of Williams to a will which he prepared while there, whereby Williams gave all of his property of every kind to Junior College at Wessington Springs and appointed Sickler sole executor without bond. Sickler says they first talked about the will soon after he arrived at the hospital, that the will was not signed until about 11 o'clock, that he did not go there to get Williams to make a will, that he did not work on him to get him to sign the will, that it was no trouble to get him to sign the will, that Williams in the conversation, referring to defendant said, "I owe Walt nothing; he has been a traitor to me." The will was duly admitted to probate, and, Sickler waiving his right to be appointed executor, Harry B. Ansted was appointed administrator with the will annexed. Williams remained in the hospital until about the 1st of August, when, being somewhat improved, he left and went to his home in Wessington Springs. On July 18th, while he was in the hospital, he made a deed of the real estate in controversy to defendant, which deed was recorded on October 21st, three days after the death of Williams. This action is brought by the administrator for the purpose of determining the adverse claim of defendant under the deed, and from judgment setting aside the deed on the ground that it was obtained by undue influence of the grantee, and because it was never delivered, and from an order denying a new trial defendant appeals.

Williams was brought back to the hospital on October 8th, and remained there as a patient until his death on October 18th. On October 16th, the doctor who attended him wrote a letter, at his request, to Sickler, who was then in California, asking him to return the will, as there were some chances that he desired to make, and requested an immediate answer by airplane mail. The will was not returned the doctor who attended Williams while he was at the hospital in June and July testified that in July, in a conversation he had with defendant, defendant said that the college authorities were trying to get Mr. Williams' property away from him and he was going to see that they did not get by with it. In addition to the property owned by Williams in Jerauld county, he owned some land of small value in Minnesota, and there was testimony that defendant said, after the death of Williams, that if he had lived twelve hours longer he (defendant) would have had a deed to the Minnesota land also. The testimony as to the execution and delivery of the deed to defendant for the Jerauld county land is substantially as follows: D. C. Wallace, an insurance agent at Mitchell, who had known both Williams and defendant for over thirty years, visited him at the hospital while he was there in June and July. During the conversation Williams said that he was worrying over a document he had signed and given to Mr. Sickler, in which there was something said about the college at Wessington Springs, and that Williams did not seem to know what it contained. He told Wallace that he would like to have him get word to defendant that he wished him to come down to Mitchell because he wanted to see him. Wallace wrote defendant telling him of Williams' desire and Grieve came to Mitchell and called on Wallace at his house, after which both of them went to the hospital and saw Williams. In the conversation that occurred at this time, Williams again said that he had signed some document and given it to Sickler and was not clear as to its contents and desired to execute some other document that would revoke what he had given to Sickler. Wallace told him that he might make another will, which would accomplish that purpose, but Williams said he did not desire to do this, whereupon Wallace told him that he might make a deed of the property to any one he desired to give it to, and that would eliminate whatever was in the paper he had given to Sickler, and that Williams told him to go ahead with this; that thereupon he went down town and got his notary seal and defendant went and got a blank deed. When they returned Williams said to defendant, "Walt, how will we fix this?" and that defendant said, "I haven't a word to say, Tommy, you fix it to suit yourself and it will be all right with me," and thereupon Williams told Wallace to make out the deed of the land to Walt, that he desired to give him all of the Jerauld county land; that he then wrote up the deed; that Mr. Williams read it and said that "That is all right," and signed it; that he then attached his certificate of acknowledgment and handed the deed to Mr. Williams,...