Estate of Linnell, Matter of

• Decision Date: 04 June 1986
• Docket Number: Nos. 15101,15220,s. 15101
• Citation: 388 N.W.2d 881
• Parties: In the Matter of the Estate of Donald LINNELL, Deceased.
• Court: South Dakota Supreme Court

Page 881

388 N.W.2d 881

In the Matter of the Estate of Donald LINNELL, Deceased.

Nos. 15101, 15220.

Supreme Court of South Dakota.

Argued April 21, 1986.

Decided June 4, 1986.

Rick Johnson of Johnson, Eklund & Davis, Gregory, for appellant sampson.

Robert L. Chavis, Yankton, for appellants Eugene and Lee Linnell.

Richard D. Hagerty, Yankton, for appellee Troxell.

HENDERSON, Justice.

ACTION

This case involves two appeals. The first and main appeal is by Edith Sampson (Edith). Edith appeals a Judgment admitting to probate the Will of her brother, Donald Linnell (Donald). Edith contends (1) Donald was not competent to execute a will and (2) that the Will was procured by undue influence. Lee and Eugene Linnell, adopted sons of Donald's deceased brother, file a second appeal from an Order dismissing them from the action contesting the Will. We affirm.

FACTS

Donald and his wife Ilene, hereinafter referred to as the Linnells, lived and farmed near Lake Andes, South Dakota. Ilene had one sister, Mavis Troxell (Mavis). Mavis lived in the nearby town of Wagner and had two children, Noble and Karen. Although the Linnells were childless, Ilene loved children. A close relationship existed between the Linnells and Mavis and her family. Often, they visited and spent holidays together. When younger, Noble and Karen spent a great amount of time at the Linnell farm. After they attained adulthood and left the Wagner area, Ilene kept track of their whereabouts.

It appears that over a span of years, the Linnells were not close to Donald's sister Edith. Edith lived some distance from the Wagner-Lake Andes area. Visits and contacts were infrequent. The record suggests that some hard feelings existed between Donald and Edith because Edith had filed suit against their brother concerning family heirlooms.

On March 5, 1971, the Linnells executed a Joint Will. Under the terms of this Joint Will, the primary beneficiaries were Mavis' children, Noble and Karen. Previously, in 1966, Donald was diagnosed as having Parkinson's disease.

In the early 1970's, Donald retired from active farming. Although the Linnells continued to live on the farmstead, they leased their farmland. In January 1979, Ilene was diagnosed as having cancer. Ilene received treatments at a Sioux Falls hospital. During the first several months of 1979, the Linnells stayed with Edith in nearby Corson, South Dakota. Eventually, the Linnells went back to their farmstead but returned to Edith's that summer as Ilene required further treatment. During these stays with Edith, Edith cared for and attended to the Linnells' needs. On Labor Day 1979, Edith and her husband drove the Linnells back to the latter's farmstead near Lake Andes.

On September 24, 1979, Ilene was hospitalized at the Wagner Hospital. During this hospital stay, Donald stayed at Mavis' residence in Wagner and drove himself to and from the hospital and the farm. On October 2, 1979, the Linnells contacted Attorney Owen Wipf concerning guardianships. It appears that the Linnells wanted to nominate Mavis as their individual guardians in the eventuality of being unable to care for themselves or their property. Donald informed Attorney Wipf that he was nominating a guardian so as to insure that Edith had nothing to do with his property. That same day, Mavis contacted Attorney Wipf and inquired about the duties and responsibilities of a guardian.

On October 5, 1979, Attorney Wipf took two Nominations for Guardianship, one for Donald and one for Ilene, to the Wagner Hospital. These documents were explained, reviewed, and then executed by the Linnells. Attorney Wipf was then asked to prepare a new joint will for them. Donald provided Attorney Wipf with a copy of their 1971 Joint Will. Various discussions ensued. Attorney Wipf thereupon prepared a new joint will and returned to the Wagner Hospital that same day, on October 5, 1979. After the Linnells examined the Joint Will, Attorney Wipf read it aloud. The Linnells then executed the Joint Will. Attorney Wipf and Noel Troxell, Mavis' husband, attested the same. As in the 1971 Joint Will, the primary beneficiaries of this Joint Will were Mavis' children, Noble and Karen.

On October 7, 1979, the Linnells were transported to Sioux Falls for Ilene's monthly treatments. While in the Sioux Falls area, they stayed with Edith in Corson. Thereafter, the Linnells returned to their farmstead. Ilene died on December 30, 1979.

After Ilene's funeral, Donald returned to Corson and stayed with Edith for several weeks. In late January 1980, Donald entered a Lake Andes nursing home and resided there until his death in September 1983.

Mavis, as executrix, offered the 1979 Joint Will for probate and Edith contested its admission. As stated above, Edith contends that Donald (1) was not competent to execute a will and (2) that it was procured by undue influence. The adopted sons of Donald's and Edith's deceased brother, Lee and Eugene Linnell, also contested admission.

Trial was held in July 1984, and the trial court by formal decision resolved the issues against Edith. By separate Order, the trial court also dismissed Lee and Eugene Linnell from the will contest because they were not interested persons in Donald's estate. See In re Estate of Edwards, 273 N.W.2d 118, 119-20 (S.D.1978); and In re Eddins' Estate, 66 S.D. 109, 110-12, 279 N.W. 244, 245-46 (1938).

From this Judgment, Edith now appeals and from this Order, Lee and Eugene now appeal. We have consolidated these appeals by our Order of March 3, 1986.

DECISION

I.

WAS DONALD COMPETENT TO EXECUTE A WILL ON OCTOBER 5, 1979? THE TRIAL COURT FOUND THAT HE WAS. WE DETERMINE THAT THIS FINDING IS NOT CLEARLY ERRONEOUS.

When reviewing the trial court's findings concerning testamentary capacity, we give due regard to the trial court's opportunity to judge the witnesses' credibility and we will not set aside its findings of fact unless clearly erroneous. In re Estate of Hastings, 347 N.W.2d 347, 351 (S.D.1984). Under the clearly erroneous standard, the question for this Court is not whether we would have made the same findings that the trial court did, but, whether on the entire evidence, we are left with a definite and firm conviction that a mistake has been committed. In re Estate of Hobelsberger, 85 S.D. 282, 289, 181 N.W.2d 455, 459 (1970). That this Court "may have found the facts differently had we heard the testimony is no warrant for us to substitute our judgment for the trial court's carefully considered findings." Hastings, 347 N.W.2d at 351.

Any person over 18 years of age and of sound mind may execute a will. SDCL 29-2-3. One has sound mind, for the purposes of making a will, if, without prompting, he is able "to comprehend the nature and extent of his property, the persons who are the natural objects of his bounty and the disposition that he desires to make of such property." In re Estate of Podgursky, 271 N.W.2d 52, 55 (S.D.1978). Soundness of mind, for the purpose of executing a will, does not mean "that degree of intellectual vigor which one has in youth or that is usually enjoyed by one in perfect health." Petterson v. Imbsen, 46 S.D. 540, 546, 194 N.W. 842, 844 (1923). Mere physical weakness is not determinative of the soundness of mind, In re Estate of Anders, 88 S.D. 631, 636, 226 N.W.2d 170, 173 (1975); and it is not necessary that a person desiring to make a will "should have sufficient capacity to make contracts and do business generally nor to engage in complex and intricate business matters...." Petterson, 46 S.D. at 546, 194 N.W. at 844.

Our review of the record satisfies us that the trial court correctly applied the above-cited principles of law, that it did not err in finding that Donald had sufficient testamentary capacity, and that Mavis, as proponent of the will, bore her burden of establishing Donald's testamentary capacity. In re Estate of Melcher, 89 S.D. 253, 257, 232 N.W.2d 442, 444 (1975).

Attorney Wipf testified that on October 5, 1979, Donald was oriented as to time and place, who he was, where he was, who his heirs were at that time, and the extent of his property and how it was held. Attorney Wipf testified that Donald knew all the above without prompting and that in his opinion, Donald was competent to make a will. Attorney Wipf had been the Linnells' attorney for some five years and the trial court understandably gave Attorney Wipf's testimony considerable weight and was justified in doing so. In re Estate of Fleege, 89 S.D. 137, 141, 230 N.W.2d 230, 233 (1975). The 1979 Joint Will, drawn by Attorney Wipf, was substantially similar to the 1971 Joint Will, and Donald's testamentary capacity in 1971 is not disputed or questioned. The 1971 Joint Will is relevant to the issue of testamentary capacity, Tobin v. Nordness, 47 S.D. 255, 257, 197 N.W. 783, 784 (1924), and the two Joint Wills establish that Donald had a constant and abiding scheme for the distribution of his property and thus refute the contention of lack of testamentary capacity. Pollock v. Pollock, 328 Ill. 179, 183, 159 N.E. 305, 309 (1927). See also, Heseman v. Vogt, 181 Ill. 400, 55 N.E. 151 (1899); Storbeck v. Fridley, 240 Iowa 879, 38 N.W.2d 163 (1949); In re Estate of Brink, 11 Mich.App. 413, 161 N.W.2d 438 (1968); In re Forsythe's Estate, 221 Minn. 303, 22 N.W.2d 19 (1946); In re Estate of Camin, 212 Neb. 490, 323 N.W.2d 827 (1982); and In re Dunn, 184 A.D. 386, 171 N.Y.S. 1056 (1918).

A registered nurse at Wagner Hospital testified that Donald was oriented at all times during Ilene's stay there and the evidence further shows that Donald drove himself to and from the Wagner Hospital. Additionally, on October 7, 1979, when the Linnells were being taken to Sioux Falls for Ilene's monthly treatments, Donald engaged in conversations, was alert, and oriented.

Other evidence of Donald's competence was presented, and although evidence to the contrary was also presented, we are not left with a definite and firm...