Ekern v. Erickson

• Court: South Dakota Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Ekern v. Erickson, 37 S.D. 300, 157 N.W. 1062 (S.D. 1916)
• Decision Date: 27 May 1916
• Docket Number: 3827.
• Parties: EKERN et al. v. ERICKSON et al. [*]

157 N.W. 1062

37 S.D. 300

EKERN et al. v. ERICKSON et al. ^[*]

No. 3827.

Supreme Court of South Dakota

May 27, 1916

Smith J., dissenting in part.

Appeal from Circuit Court, Moody County; Joseph W. Jones, Judge.

Will contest by Annila Ekern and others against Peter Erickson and others, begun in probate court, where the instrument was admitted to probate, and appealed by contestants to the circuit court. From a judgment there for contestants, and an order denying new trial, proponents appeal. Affirmed.

Ira F Blewitt, of Flandreau, for appellants.

F. A Warren, of Flandreau, and Hanten & Hanten and P. F. Gault, all of Watertown, for respondents.

SMITH J.

Respondent challenges the sufficiency of appellants' assignments of error for the reason that they contain no references to the specifications of error upon which they were founded. Appellants' brief contains a statement that specifications are not printed in the brief, "inasmuch as the assignments of error herein printed are identical with those accompanying the notice of intention," etc. The assignments being numbered, a majority of the court are of opinion that this is a sufficient reference to the specifications of error. Most of the assignments refer to pages of the settled record and of the brief where the matter excepted to is found. In my judgment this is not sufficient. Rule 5 (140 N.W. viii) requires that:

"Each assignment of error-except one assigning as error, the denying of a new trial-shall clearly refer by number to the corresponding specification of error, and shall also state the page of the settled record where such specification is to be found."

Hepner v. Wheatley, 33 S.D. 34, 144 N.W. 923, charitably prescribes what I deem to be an amendment to this rule, viz.: That the specifications of error may be printed in the printed record, and the page of the printed record referred to, instead of referring to the page of the settled record, without either a reference to the number of the specification or the page of the settled record. In this case the specifications of error are not contained in the printed record, nor do the assignments of error contain any references by number or page to specifications in the settled record. This is not even a substantial compliance with the rule. In my judgment this court should repeal or modify its rules or enforce them. In the Hepner Case, supra, and in Sweeney v. Hewett, 34 S.D. 302, 148 N.W. 503, we have in effect annulled or amended rule 5 by prescribing something else "just as good." In this case, there are 29 assignments of error, and not a single one of them complies with the rule, even as construed in the Hepner Case. This case falls squarely within syllabus 3 of the Sweeney Case. A majority of my Associates, however, seem to be of opinion that these defects may be covered by that mantle of charity commonly known as "a substantial compliance." I record my dissent, before taking up the legal propositions supposed to be presented by the alleged assignments of error.

A brief statement of the facts will aid in the consideration of the questions presented upon this appeal: Peter Erickson, Sr., with his wife, Anna Erickson, came to Dakota Territory, and settled on a homestead in Moody county, many years ago. They had five children, Annila, Robert P., Peter, Erick P., and Andrew. Peter Erickson, Sr., died intestate, November 30, 1909, leaving an estate consisting of over 600 acres of land and some personal property. The son Andrew never married and died before his father. The son Erick P. also died before his father, leaving a widow, Regina, and five children. The estate of Peter Erickson, Sr., was duly probated and distributed, one-third to his widow, Anna Erickson, the other two-thirds in equal parts to Robert, Peter, and Annila, with an equal share to the children of the son Erick, deceased. In the year 1900, for reasons which are not material here, Peter Erickson, Sr., and his wife separated. Pursuant to this separation, Peter Erickson, Sr., made arrangements with Regina, widow of his deceased son Erick, to build a small house close to where Regina lived for the use of his wife, under an agreement that Regina was to care for and render such assistance as was necessary. Under this arrangement the wife remained in Regina's care from that time until about April, 1910. In that month the son Robert returned from North Dakota with his family. Very shortly thereafter his mother was removed from Regina's place to his home, where she remained until her death, April 27, 1913. The daughter-in-law, Regina, was fully paid out of the estate of Peter Erickson, Sr., for her services in caring for and assisting Anna Erickson during the time she remained with her, a period of about 9 years and 4 months. In January, 1910, while living in the house near Regina Erickson's, Anna Erickson executed a will, which was drawn by Hon. Lewis Benson, an attorney. Robert Erickson testified that he sent for Mr. Benson to draw this will at the request of his mother, Anna Erickson, and that he was in the house when the will was drawn and executed, though not in the room. This will was not before the court, although from testimony in the record it may be inferred that its terms were similar to the later will in contest here. In August, 1910, and after Anna Erickson had been removed from Regina's place, and was residing in the home of Robert Erickson, the second will, which is in contest, was executed. It was drawn by the same attorney, Mr. Benson. Robert Erickson also testified that he sent for Mr. Benson to draw this second will at the request of his mother, Anna Erickson. By the terms of this will the daughter Annila (Ekern) was given a bequest of $500, the five children of Erick P. Erickson, deceased, her grandchildren, were give each $5, Regina Erickson, their mother, was given $50, and all the residue of her property, real and personal, was given to the two sons, Peter and Robert. The defendant Halverson was named as executor. This will was filed for probate in the county court of Moody county, and was contested by all the heirs and devisees except Peter and Robert, who seek to sustain the will.

The objections filed to the probate of the will are quite lengthy, but in substance allege that Peter and Robert induced their mother, Anna Erickson, to remove from the home of Regina Erickson with the purpose of gaining her confidence and securing an influence over her, and by misrepresentations and divers wrongful wiles procured and induced the said Anna Erickson to execute the will in their favor; that thereafter she was compelled to remain in the home of Robert Erickson, and was not permitted to leave the house, and was kept under restraint; that at the time of the alleged execution of the will Anna Erickson was sick and feeble, had been blind for many years, unable to read or write, was confined to her bed, was unable to wait upon or care for herself, was 84 years old, weak-minded, and subject to influence; and that said will, if executed by her, was obtained by undue influence on the part of Peter and Robert Erickson.

The probate court entered findings and conclusions adverse to the contestants, admitted the will to probate, and appointed Halverson as executor. The contestants appealed to the circuit court, demanding a new trial. The cause was placed on the April, 1914, calendar for trial. Regina Erickson appeared in the action as guardian of the estates of her two minor children. The cause being called for trial, Regina, as guardian of said minor children, asked to be discharged and dismissed as contestant of the will, which was granted over the objections of the proponents, Peter and Robert Erickson. The case was called for trial April 30, 1914, and was tried by the court without a jury. On August 11, 1914, the court filed findings of fact and conclusions of law to the effect that before and at the time of making said purported will, on August 8, 1910, Anna Erickson son was acting under undue influence, and entered a judgment reversing, vacating, and setting aside the proceedings admitting the will to probate. Thereafter Halverson, as executor, and Peter and Robert Erickson, presented a motion for a new trial, which was denied, and this appeal is from the judgment and an order overruling the motion for a new trial.

Assignments of error 1 to 17, inclusive, relate to rulings on evidence. A careful examination of all of them satisfies us that, though some are perhaps erroneous, none of them are shown to have been prejudicial, and therefore would not constitute reversible error. State v. Squirrel Coat, 32 S.D. 569, 143 N.W. 958; French v. Bank, 35 S.D. 152, 151 N.W. 286. We do not deem any of them of sufficient importance to warrant separate discussion. Appellants requested a finding upon the issue of mental capacity of testatrix at the time she executed the will, and, though the trial court made no finding upon that issue, this neglect or refusal is not assigned as error.

Respondents contestants of the will, alleged that Anna Erickson was aged, feeble, blind, and unable to read and write, sick, confined to her bed, somewhat weak-minded, and that she lacked mental capacity to execute a will. But at the trial it seems they did not attempt to prove as a specific fact that she was not of sound and disposing mind and memory when she executed the will. The testimony of Mr. Benson, who drew the will, of the clergyman, who visited her, and of other witnesses, who believed her to be mentally capable of making a will, therefore became immaterial, as it related to the mental capacity of the testatrix at the time the will was executed. But the testimony of contestants' witnesses to show physical and mental weakness, age, and other infirmities, and even...