Hackett v. Hackett (In re Hackett's Estate)

• Citation: 145 N.W. 437,33 S.D. 208
• Parties: In re HACKETT'S ESTATE. HACKETT et al. v. HACKETT.
• Decision Date: 14 February 1914
• Court: Supreme Court of South Dakota

33 S.D. 208

145 N.W. 437

In re HACKETT'S ESTATE.

HACKETT et al.

v.HACKETT.

Supreme Court of South Dakota.

Feb. 14, 1914.

Appeal from Circuit Court, Clay County; R. B. Tripp, Judge.

Application for the probate of the will of Jane Hackett. From a judgment for contestants, Elmer E. Hackett and others, Eugene Hackett appeals. Reversed and remanded.Payne & Olson, of Vermilion, and W. O. Knight, of Wakonda, for appellant.

John L. Jolley, of Vermilion, and Bogue & Bogue, of Centerville, for respondents.

McCOY, J.

This action involves the contest of the will of one Jane Hackett, who died October, 1911, having theretofore, on the 8th day of September, 1908, made what purported to be her last will and testament. When this will was offered for probate certain of her children and heirs and devisees under said will appeared and entered written objections, and contested the probate of said will upon the ground, among others, that at the time of the execution of said will said Jane Hackett was not of sound mind, and was not competent to make a last will and testament. The county court, after hearing, by order and judgment admitted said will to probate. From the order and judgment admitting said will to probate contestants appealed to the circuit court, where a trial de novo was had before the court and a jury. Verdict was rendered finding that said decedent, at the time of the execution of said will, was not of sound mind, and was not competent to make a last will. Thereafter, and before the makings of findings by the trial court, the appellant moved the court to disregard the findings of the jury and to make findings favorable to appellant. This motion was overruled and denied, and appellant excepted to such ruling. The court then adopted the findings of the jury and rendered judgment disallowing the probate of said will, from which judgment the appellant, Eugene Hackett, has taken an appeal.

[1][2][3][4] The vital question to be determined is whether or not the said finding of the jury, as adopted and approved by the findings of the court, is opposed by the weight or clear preponderance of the testimony. The verdict was advisory to the court only. Shaw v. Shaw, 28 S. D. 221, 133 N. W. 292. We are of the opinion that the clear preponderance of the evidence is against said findings. The evidence on the trial was quite voluminous, and it will serve no useful purpose, and it would be impracticable, to herein set the same out in full. Evidence which is practically undisputed shows the following facts: That the will in question was written and executed on the afternoon of September 8, 1908, at the family home of Jane Hackett, who was then a widow, her husband having died several years prior thereto; that about a year previous to the execution of the will she had suffered a stroke of partial paralysis, and from that time on until a very short time before her death her physical condition was weak and frail; before and after the execution of the will, her locomotion was partly impeded, but she attended to her household duties, sweeping floors, washing dishes, making beds, and to some extent superintended her farm, walking over the farm, receiving the proceeds, and paying the same out in the ordinary course of business; that she then resided with her two unmarried sons, Eugene and Arthur, and one unmarried daughter, the oldest of whom was about 25 years of age; that she had other married children...