Blake's Estate, In re

• Decision Date: 30 June 1965
• Docket Number: No. 10199,10199
• Citation: 136 N.W.2d 242,81 S.D. 391
• Parties: In the Matter of the ESTATE of Frank BLAKE, Deceased. Callie B. TINKHAM and Arthur Blake, Contestants and Appellants, v. Mary Elizabeth DOTSON, Sr., Florence Ingersoll, Charlie Ingersoll, Cleo Scott Berry, Elsie Blake, Marion Blake Matt, Bonny Davis, Mickey Karinen, Reuben Juntti, LeRoy Rathburn, Louise Hartwell and First National Bank of the Black Hills, Proponents and Respondents.
• Court: South Dakota Supreme Court

Page 242

136 N.W.2d 242

81 S.D. 391

In the Matter of the ESTATE of Frank BLAKE, Deceased.

Callie B. TINKHAM and Arthur Blake, Contestants and Appellants, v. Mary Elizabeth DOTSON, Sr., Florence Ingersoll, Charlie

Ingersoll, Cleo Scott Berry, Elsie Blake, Marion Blake Matt,

Bonny Davis, Mickey Karinen, Reuben Juntti, LeRoy Rathburn,

Louise Hartwell and First National Bank of the Black Hills,

Proponents and Respondents.

No. 10199.

Supreme Court of South Dakota.

June 30, 1965.

Donn Bennett, Buffalo, for contestants and appellants.

Hayes & Richards, Deadwood, for respondent, Mary Dotson.

Gale B. Wyman, Belle Fourche, for respondents, Florence Ingersoll, and others.

Stephens & Brandenburg, Belle Fourche, for respondent First Nat. Bank of the Black Hills.

HOMEYER, Judge.

This case involves a contest of the will of Frank Blake. The contestants, Arthur Blake and Callie B. Tinkham, are a nephew and niece of the decedent. They filed an opposition to its probate the essence of which is that the execution of such instrument was procured by the exercise of undue influence upon the deceased by Mary Dotson, one of the beneficiaries. The opposition was disallowed and the contestants appeal.

The questioned will was executed on July 24, 1963, and provides for the following percentage division of the estate: Florence Ingersoll, a niece, 10%; Charlie Ingersoll, niece's son, Cleo Scott Berry, niece, Vernon Scott, Nephew, Elsie Blake and Marion Blake (the first wife and the daughter of Arthur Blake, one of the contestants), Louise Hartwell, LeRoy Rathburn, Reuben Juntti, Mickey Karinen (all designated as friends), Bonnie Davis, great niece, and LeRoy Tinkham, niece's son, each 5%; and the remaining 35% to Mary Dotson, the widow of Ralph Dotson, a deceased nephew. The First National Bank of the Black Hills is named as executor.

The prime question raised by the assignments of error is whether the finding of the court below to the effect that there was no undue influence exercised by Mary Dotson is sustained by the evidence.

We review on the elementary principle that the proponents of the will, the respondents herein, are entitled to the benefit of their version of the evidence, and all reasonable inferences deducible therefrom, and that as an appellate court we are not free to disturb the finding of the trial court unless it is contrary to the clear preponderance of the evidence. Cramer v. Cramer, S.D., 131 N.W.2d 102.

The testator, Frank Blake, was a lifelong bachelor and passed away on September 23, 1963, at the age of 87 years. He and his brothers William and Louis for many years had lived together and operated large sheep and cattle ranches in northeastern Wyoming. William died in 1949 and soon afterwards Louis and Frank moved to Belle Fourche, South Dakota, and continued to live together. After William's death, Louis and Frank executed mutual wills leaving their respective estates to each other with provision that when both were deceased all property was to go to the children of Louis, namely Arthur Blake, Callie B. Tinkham, and Robert Blake. The last named was deceased when this proceeding was instituted. Louis Blake died in 1955 and his will was probated in South Dakota with an ancillary administration in Wyoming since the brothers owned about 5,246 acres of land in that state when Louis died.

In May 1959 Frank Blake expressed a desire to make another will and solicited the aid of legal counsel other than counsel probating the Louis Blake estate. A second will was executed in which he left to the children of Louis all property which he inherited from Louis, and he willed all his other property to other relatives. This will is not included in the record and the exact disposition of the estate made by such will is not disclosed. Shortly afterwards, one of the contestants, Arthur Blake, petitioned the County Court of Butte County to have Frank Blake placed under guardianship and a guardian was appointed without prior notice to Frank. This appointment was promptly vacated. Then followed negotiations which culminated in a written agreement executed on June 26, 1959, whereby the children of Louis Blake received the property which Frank had inherited from Louis Blake and in return they released and disclaimed all interest in the property of Frank Blake and his estate and released the latter from all contractual obligations arising from or incidental to the execution of the mutual wills. On trial it was urged that contestants by this agreement were estopped from contesting the will. However, the trial court made no finding thereon and estoppel was not the ground on which the contest was denied. Consequently, we consider the execution of this agreement only as a circumstance bearing on the question of undue influence.

In the next fifteen months, and as is not unusual when an elderly person possessed of considerable property and little education and business experience is involved, Frank Blake was besieged by individuals, perhaps all well intentioned, seeking to aid him in the management and disposition of his worldly goods. Misconstructions of legal documents and misunderstandings prompted ill advised actions which ultimately were rectified after considerable effort and some expense. To avoid a repetition of these occurrences, or at least minimize their possibility, and on the advice of competent legal counsel in two states, Frank Blake on October 13, 1960, petitioned and the District Court of Crook County, Wyoming, appointed, Jay Durfee, a banker of Sundance as guardian of his estate. Durfee continued to act under such appointment until shortly after March 12, 1963, when the Supreme Court of Wyoming in the case of Thoeming v. District Court of the Sixth Judicial Circuit, etc., Wyo., 379 P.2d 543, ruled that under Wyoming law a district court was without jurisdiction to appoint a guardian over the person or estate of an alleged incompetent without a hearing and an adjudication of incompetency. Following this decision Durfee and his counsel took the position that his purported appointment was void and refused to further act thereunder.

On October 11, 1960, Frank Blake had executed a will, Exhibit 14, which was identical to the one which is contested except a 10% bequest was provided for Ralph Dotson and a 25% bequest for Mary Dotson. Ralph Dotson was the husband of Mary Dotson and died between the dates of these wills. Exhibit 14 was prepard shortly after Frank Blake had conveyed his Wyoming real estate to two of his advisors, both nonrelatives, and had made a will leaving 25% of his estate to one of them. This bequest was eliminated in Exhibit 14 and the name of Mary Dotson substituted in place of the previously designated beneficiary. Mrs. Dotson was present when Exhibit 14 was drafted, but there is no evidence that she took part in its preparation. It was drafted by the same lawyer who had prepared a previous will and represented Frank Blake in his settlement with the Louis Blake children. This lawyer testified as to the circumstances attending the inclusion of this bequest to Mrs. Dotson in the testamentary document. Exhibit 14 was not executed in the lawyer's office, but in the office of a doctor.

The terminal illness of Frank Blake began about 14 months before his death during which period he spent virtually all of his time in hospitals and nursing homes. From June 26, 1963, until his death he was confined to a Rapid City hospital continuously. Durfee refused to further act as guardian and current unpaid bills were accumulating. Likewise, in the Wyoming guardianship, Frank Blake's interest in some Wyoming real estate had been sold and there arose a question as to the legality of such sale. To eliminate title objections, a quitclaim deed from Frank Blake to the purchaser was prepared by Wyoming counsel for the guardian, Durfee, and mailed to Blake's South Dakota counsel at Belle Fourche. Such counsel also prepared a petition for appointment of a South Dakota guardian because of the physical disability of Frank Blake. He also prepared Exhibit 1, the will here contested, which is identical to Exhibit 14, the previous will referred to above, except it deleted the 10% bequest to Ralph Dotson and added such share to the bequest to his widow, Mary Dotson. The testimony of the scrivener is that he prepared Exhibit 1 on his own volition cognizant of Ralph Dotson's death and because of an uncertainty as to intervening wills since Exhibit 14 was executed.

On July 24, 1963, Frank Blake signed the quitclaim deed and also the petition for appointment of the First National Bank of the Black Hills as his guardian. Mary Dotson also signed the same petition. Following the execution of these documents, Frank Blake executed Exhibit 1. The attesting witnesses were the doctor who had attended the testator for the previous fourteen...