Estate of Congdon, In re, s. 9219

• Citation: 51 N.W.2d 877,74 S.D. 306
• Decision Date: 28 February 1952
• Docket Number: 9227,Nos. 9219,s. 9219
• Parties: In re CONGDON'S ESTATE. HOEYE v. CONGDON.
• Court: Supreme Court of South Dakota

Page 877

51 N.W.2d 877

74 S.D. 306

In re CONGDON'S ESTATE HOEYE v. CONGDON.

Nos. 9219, 9227.

Supreme Court of South Dakota.

Feb. 28, 1952.

Rehearing Denied April 18, 1952.

Smiley & Clark, Belle Fourche, for contestant and appellant.

Penfold & Overpeck, Belle Fourche, for claimant and respondent.

SMITH, Judge.

The creditor's claim of Bessie Hoeye, sister of the decedent John L. Congdon is made up of three items which we number for convenience in making reference thereto. First, she claimed she worked for decedent from November 1, 1940 to June 1, 1941 at an agreed wage of $150 per month; second, under a separate contract she claimed she worked for him from October 1, 1943 to July 1, 1947 for the agreed wage of $150 per month; and third, she claimed she made advances on his behalf during 1944 and 1945 aggregating $150. She credited decedent with payments of $250 during 1944 and 1945, and with $1,000 as result of a land transaction in 1947. The executrix rejected the claim as a whole and it was heard by the county court. The claimant and the executrix, respectively, deemed themselves aggrieved by the order of the county court and appealed to the circuit court. Trial de novo resulted in a judgment disallowing the first item of the claim because the cause of action therein described was barred by the statute of limitations, allowing the second item, and disallowing the third item as not established by the proof. The amount of the claim was reduced by the credits admitted therein. The separate appeals will be disposed of by a single opinion.

The executrix asserts that the circuit court erred in overruling her motion for a dismissal of the proceeding on the ground that the claim failed to state the cost office address of the claimant as required by SDC 35.1407. The court allowed an amendment of the claim on motion of the claimant and denied the motion to dismiss.

It is provided by statute, 'When any creditor has presented or filed his claim as provided in section 35.1401, and within the time prescribed in section 35.1404, the court may, for good cause shown, and on such notice as the court deems proper, and either before or after the expiration of the time for presenting or filing claims, permit such creditor to amend such claim, either in form or substance. No defect in the form or contents of any claim presented or filed shall deprive a creditor of any rights whatsoever, if it satisfactorily appears that such creditor acted in good faith, and if his claim is amended as provided by this section to conform with the requirements of this chapter.' SDC 35.1405.

In our opinion the trial court exercised a sound judicial discretion in the premises. Before the court was the fact that not only did the executrix know the omitted address, but that she had made it a matter of record in the proceedings as part of the contents of her petition for the probate of the will. A different ruling would have violated the spirit if not the letter of SDC 35.1405.

The next contention of the executrix involves SDC 36.0104 reading as follows: 'In actions, suits, or proceedings by or against the representatives of deceased persons including proceedings for the probate of wills, any statement of the deceased whether oral or written shall not be excluded as hearsay, provided that the trial judge shall first find as a fact that the statement was made by decedent, and that it was in good faith and on decedent's personal knowledge.'

Testimony was introduced, subject to the objection of the executrix, of declarations of deceased to persons related by blood or marriage to claimant, and to an attorney who had formerly represented claimant in a contest of the will of decedent in an Iowa proceeding. The court ultimately determined that such statements were made by decedent, in good faith and on decedent's personal knowledge, and overruled the objection. Without question these declarations of deceased were determinative of the fact issues under item two. It is the contention of the executrix that the trial court abused its discretion in accepting and acting on the testimony of these interested witnesses without any corroboration by disinterested witnesses, or by other evidence.

In Scott v. Liechti, 70 S.D. 89, 15 N.W.2d 1, 3, where the change in policy represented by this statute was explained, this court said, 'The testimony or evidence which will move a trial court to find that an alleged statement was made by the decedent in good faith and with personal knowledge, of course, offers a wide range. The statute attempts to leave such determination to the sound judgment of the trial court. In the present case the testimony of the plaintiff was corroborated by disinterested witnesses, * * *.'

And again in Cox v. Bowman, 71 S.D. 72, 21 N.W.2d 277, 279, we said, 'In the light of the record facts corroborating the testimony of the intervener, we hold there was no abuse of discretion vested in the court in the admission of the testimony.'

The executrix reads these decisions as holding that there must be corroboration by disinterested witnesses in order to justify a trial court in making...