Estate of Gibbs, Matter of

Decision Date02 September 1992
Docket Number17805,17816,Nos. 17336,17782,17779,s. 17336
Citation490 N.W.2d 504
PartiesIn the Matter of the ESTATE of Walter A. GIBBS, Deceased.
CourtSouth Dakota Supreme Court

George Beal, Rapid City, for Will Contestant and appellant, Bernice boettner.

Rick A. Cain of Seiler & Cain, Mobridge, for Will Proponent and appellant, Delores Christenson.

WUEST, Justice.

This case is a consolidation of three appeals arising from the probate of the latest will of Walter A. Gibbs (Gibbs), deceased. After the will was admitted to probate, it was discovered the sole legatee, Delores Christenson (Delores), was involved in the murder of Gibbs, although she was acquitted of all criminal charges. The issues which will be discussed are:

1. Whether the trial court's determination that Delores was a willful slayer was clearly erroneous.

2. Whether attorney fees were properly awarded from the estate to Delores, a sole legatee found to be a willful slayer.

We affirm in part and reverse in part.


Gibbs farmed in Corson County and resided with his mother until 1963, when he hired Delores to help care for her. He married Delores for the first time in 1964, and in 1973, they moved to Lemmon, South Dakota. Soon after, they divorced. Gibbs and Delores remarried in 1977 and divorced a second time the same year. In the meantime, Delores married another. Delores' only child, Robyn, was born of this marriage. Gibbs then married Delores' twin sister, Darlene Wahl (Darlene), but that marriage ended in divorce in 1980. He remarried Darlene and divorced her again in December 1983. From late 1984 through March 1985, Delores and Robyn lived at a variety of locations, in North Dakota and South Dakota. Gibbs's last marriage was to June Penny; this union was terminated by divorce in 1986.


During the 1988/1989 winter, Delores, Robyn, Darlene (now Darlene Phillips) and Darlene's husband, Jerry Phillips (Jerry) (also known as Jerome), who were all living together, experienced very difficult times due to a lack of money. Early in 1989, Delores contacted Gibbs at the Hettinger, North Dakota nursing home where he resided. She offered to move back to Lemmon and care for Gibbs at his home. In February 1989, Delores, Robyn, Darlene and Jerry obtained a key to Gibbs' house and began cleaning and preparing the house for Gibbs' return.

Gibbs returned from the Hettinger nursing home on April 15, 1989. During the next eleven months the group lived in the house as a "family." Delores did most of the cooking and laundry and gave Gibbs regular baths, and Jerry would help Gibbs with such things as getting in and out of the bathtub. Neither Darlene nor Jerry were employed outside the home. Gibbs paid most of the household bills and handled his own personal finances and all matters relating to his farm.

Attorney Curtis Hanks (Hanks) of Lemmon represented Gibbs on all five divorces. He also prepared wills for Gibbs in 1977, 1979, 1982, and two in 1986. All of the wills named Gibbs' first cousin, Bernice Boettner (Boettner), as a beneficiary. In March 1989, at Gibbs' request, and prior to leaving the nursing home, Hanks drew up a codicil to Gibbs' 1986 will, leaving the home in Lemmon to Delores and the rest of his estate to Boettner. Prior to the codicil, the 1986 will left Gibbs's entire estate to Boettner, unless she predeceased him.

In the latter part of December or early January 1990, Gibbs decided to make a new will. Delores located an attorney who then drafted Gibbs' new will and she procured two witnesses for the will execution. Gibbs' Last Will and Testament disinherited his relatives and left his entire estate, worth approximately $175,000.00, to his former wife Delores. Gibbs executed the new will on January 5, 1990.

Gibbs died testate on April 1, 1990, at the age of 85. Initially, it was thought he died of a heart attack. Delores petitioned for probate of the will. Boettner objected to the petition contending Gibbs was incompetent, lacked testamentary capacity and that the will was executed while Gibbs was subject to duress, fraud and undue influence.

The matter was tried to the court on July 18 and 19, 1990. The trial court found Gibbs was mentally competent; there was no confidential relationship between Gibbs and Delores; and Boettner, the will contestant, failed to establish fraud, duress or undue influence by a preponderance of the evidence. Boettner appealed the trial court's findings to this Court; this appeal, # 17336, is now moot due to later occurrences related below.

In January 1991, Delores, Darlene and Jerry were indicted on charges of conspiracy to murder Gibbs and aiding and abetting first and second-degree murder. Boettner petitioned for revocation of probate on the ground of newly discovered evidence. Under the willful slayer statute, she also petitioned for disqualification of Delores as a beneficiary. Jerry pled guilty to conspiracy to commit second-degree murder. Darlene was convicted of murder and conspiracy to murder and sentenced to life in prison. 1 Delores was acquitted of all charges.

The conspiracy originated on January 8, 1990, three days after Gibbs executed the January 1990 will, when Darlene suggested killing Gibbs to "activate the will." This conversation occurred while Darlene and Jerry were driving to Redfield. Delores was not present on the trip. The next conversation occurred in late January or early February at the Gibbs residence when Darlene proposed that they could weaken Gibbs and hasten his death by mixing sleeping pills and nitroglycerin tablets with his tea. Although present during this conversation, Delores made no comment one way or the other. In several later conversations, Darlene again discussed spiking Gibbs' tea with medication, and eventually reported to Jerry and Delores that she had loaded Gibbs' Milk of Magnesia with sleeping pills and prescription medication. Both Jerry and Delores, at this time, were well aware of Darlene's intentions, but Delores had not yet shown any affirmative signs of agreement or assistance. Delores, on at least one occasion, purchased over-the-counter sleeping pills when she refilled Gibbs' prescriptions. The trial court opined it was unclear whether this purchase was at Gibbs' request or at Darlene's. Delores was the only person authorized to charge prescriptions at the drug store and so the trial found her conduct on that occasion would not support any inference of wrongdoing.

The trial court concluded the dispositive evidence of conspiracy on the part of Delores concerned an incident one week before Gibbs' murder. This incident involved Delores, Darlene and Jerry. Darlene suggested smothering Gibbs with a pillow. Without comment, Delores went to her bedroom, returned with a pillow, and handed it to Jerry who held it over Darlene's face to see whether she could breathe.

On Saturday evening, March 31, Darlene announced to the other two that they were going to have to do something to Gibbs if he was still alive in the morning. On the morning of April 1, either Darlene or Delores told Delores' daughter Robyn to take the dogs for a walk. After Robyn left, Darlene got a pillow from her bedroom and gave it to Jerry. Delores sat at the kitchen table, approximately seventeen feet from Gibbs' bed. Darlene held Gibbs' arms while Jerry smothered him. Had she chosen to do so, Delores could have observed Gibbs' murder. After Jerry removed the pillow, Delores went over and embraced Jerry. Whether this was an expression of grief, regret or victory is unknown, and the trial court was unwilling to draw any inference of wrongdoing from this behavior.

Delores offered the will for probate and testified at the will contest regarding Gibbs' death. She did not disclose the fact of Gibbs' murder until December 17, 1990, when questioned by Agent Overturf (Overturf) of the South Dakota Department of Criminal Investigation (D.C.I.) at the Springfield Correctional Facility.

On May 31, 1991, Boettner filed a petition to revoke the probate of Gibbs' will and an application to disqualify Delores as a willful slayer. After a trial to the court, the trial court denied the petition to revoke probate but disqualified Delores from acquiring property or benefitting from the estate as a willful slayer. Delores appeals from that decision and from several evidentiary rulings made at trial. Boettner filed a notice of review challenging the decision denying her Petition to Revoke Probate of Will. These appeals will be referred to as appeal numbers 17779, 17782. All of the issues raised in these appeals are either moot or without merit except the issue regarding the trial court's determination that Delores was a willful slayer.

Attorney Rick Cain, who represented Delores, itemized his time expended and expenses incurred during both trials to defend the attacks on Gibbs' will. He requested the court approve payment of the fees by the estate and award judgment in favor of the estate and against Boettner. The trial court authorized the estate administrator to pay Cain for the time and expense associated with the two trials. The trial court refused to award judgment in favor of the estate against Boettner pursuant to SDCL 30-7-8. 2 Boettner appeals the award of attorney fees. Delores, by notice of review, appeals the trial court's refusal to award judgment against Boettner. These appeals will be referred to as appeal numbers 17805, 17816. The only issue raised in this third appeal which merits discussion is whether the award of attorney fees was proper.


We first set out the relevant standard of review.

[T]his court will not set aside a trial court's findings of fact unless clearly erroneous. SDCL 15-6-52(a); In Re Estate of Hobelsberger, 85 S.D. 282, 289, 181 N.W.2d 455, 458 (1970). A finding is not clearly erroneous unless the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been...

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