Heer's Estate, Matter of

• Court: South Dakota Supreme Court
• Writing for the Court: HENDERSON; WOLLMAN; DUNN; DUNN
• Citation: Heer's Estate, Matter of, 316 N.W.2d 806 (S.D. 1982)
• Decision Date: 10 March 1982
• Docket Number: No. 13436,13436
• Parties: In the Matter of the ESTATE OF Bernhardt E. HEER a/k/a Ben Heer. Lena MRAZ, Leonard Heer and Gilbert Heer, Plaintiffs, Contestants and Appellants, v. Iona FREIER, Defendant, Petitioner and Appellee.

Page 806

316 N.W.2d 806

In the Matter of the ESTATE OF Bernhardt E. HEER a/k/a Ben Heer Lena MRAZ, Leonard Heer and Gilbert Heer, Plaintiffs Contestants and Appellants, v. Iona FREIER, Defendant, Petitioner and Appellee.

No. 13436.

Supreme Court of South Dakota.

Argued Oct. 21, 1981.

Decided March 10, 1982.

Steven M. Johnson of Brady, Kabeiseman, Reade, Abbott & Johnson, Yankton, for plaintiffs, contestants and appellants.

Wally Eklund of Johnson, Johnson & Eklund, Gregory, for defendant, petitioner and appellee; Charles Rick Johnson of Johnson, Johnson & Eklund, Gregory, on the brief.

HENDERSON, Justice.

ACTION

This is an appeal from a will contest involving contestants Lena Mraz, Leonard Heer and Gilbert Heer (appellants) and proponent Iona Freier (appellee). The will in question named proponent as sole beneficiary. Bernhardt E. Heer is the deceased testator. Pursuant to a bench trial, the court entered twenty-eight findings of fact, number twenty-seven reciting that no confidential relationship existed between decedent and proponent. We hold that such a confidential relationship did exist, but affirm the order of probate for the reasons detailed below.

PROCEDURAL HISTORY

Decedent died on November 2, 1980. His will was filed for probate by proponent on November 14, 1980. Contestants filed an objection to probate of the will on December 8, 1980, requesting that the will be denied admission to probate for these reasons: (1) the will was procured as a result of undue influence by proponent; (2) decedent lacked testamentary capacity; and (3) the will was improperly executed and attested. Trial was held on February 17, 1981; a memorandum decision was filed on March 13, 1981; findings of fact and conclusions of law were entered and filed on April 8, 1981; and, on the latter date, the trial court entered its order admitting the will to probate holding that there was no undue influence, testator did not lack testamentary capacity, and the will was properly executed and attested. Pending this appeal, the trial court granted a motion to stay proceedings and ordered that no final distribution of any assets of the estate be made.

FACTS

Decedent Bernhardt E. Heer was a bachelor farmer all of his adult life. Contestants are siblings of decedent. At the time of his death, decedent was farming in partnership with his brother, Gilbert Heer. For many years prior to this action, the brothers lived and worked together on the farm.

Proponent Iona Freier was born and raised in the same vicinity as decedent. She married and was divorced in approximately 1957. After operating a local tavern for several years, in 1971 proponent began to periodically assist decedent, at his request, with the farming operations. She did farm chores on a daily basis, plus assisting with seasonal field work and the operation of heavy farm equipment. In 1974 proponent moved into a vacant house on the farm. Decedent and his brother, however, continued to maintain their own separate home. Until July of 1979, proponent worked at a part-time job in a nearby town and also kept an apartment there. Although the time frame is somewhat unclear, it appears that in 1977 decedent moved into the house which proponent and he had remodeled. Finding of Fact Number Four establishes that decedent so moved due to fear of his brother.

According to proponent, no sexual relations ever occurred between herself and decedent. Proponent also testified that, over a period of years, she loaned decedent approximately ten thousand dollars at no interest. Not until 1979 or early 1980 was proponent repaid for this loan. Proponent's son (Gerald Freier), his wife and children also periodically worked on the farm. Gerald Freier had known decedent, and occasionally worked for him, for several years prior to decedent's death.

Gilbert Heer was sent to the state mental hospital for three months in 1979 shortly after an altercation between himself and Gerald Freier. It was at this time that proponent left her part-time job in town and commenced working and living on the farm full time. Finding of Fact Number Four establishes that Gilbert Heer had suffered episodes of mental illness.

A will was executed by decedent on February 29, 1980. This will left twenty-five percent of decedent's estate to his brother Leonard Heer and the remainder to proponent; Leonard Heer was named as executor. In May of 1980 decedent was diagnosed as having terminal cancer. Proponent, at this time and until the time of decedent's demise, did the cooking and washing for decedent; she also deposited at least one of decedent's business checks at his bank, made telephone calls concerning his farming business and made entries in the farm record book. During the final six months of 1980, proponent, her son, and grandchildren were paid over $4,000 for labor on the farm.

On October 20, 1980, decedent executed a second will which effectively superseded the first will. In this latter will, proponent was named as executrix and sole beneficiary. Death came to decedent twenty-five days after the will was executed.

ISSUES

I.

Did the trial court err in finding that there was no confidential relationship between decedent and proponent? We hold that it did but such error was harmless under the facts of the case.

II.

Did the trial court err in admitting decedent's will into probate due to alleged defects in execution and attestation? We hold that it did not.

III.

Did the trial court commit prejudicial error in not allowing contestants to call Gerald Freier (son of proponent) as an adverse witness? We hold that it did not.

IV.

Did the trial court err in not allowing Susan Bos (proponent's former daughter-in-law) to testify with regard to her opinion on whether proponent ever attempted to influence decedent in making decisions affecting the farm? We hold that it did not.

DECISION

I.

In its findings of fact, the court below stated that "there was not a confidential relationship between the proponent and the decedent." Contestants argue that this finding was clearly erroneous. SDCL 15-6-52(a); In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970). Upon a review of the record, we agree.

Initially, we recognize the various rules of appellate deference which apply when reviewing an evidentiary finding by the trial court. See SDCL 15-6-52(a); In re Estate of Shabley, 85 S.D. 692, 189 N.W.2d 460 (1971); In re Estate of Hobelsberger, supra; In re Metz' Estate, 78 S.D. 212, 100 N.W.2d 393 (1960). Even so, the facts here effectively override any presumptions of correctness with regard to the trial court's finding that no confidential relationship existed between proponent and decedent. Multiple evidentiary particulars bear this out.

There can be no dispute that the last years of decedent's life were tightly interwoven with the day-to-day routine of proponent. For several years prior to the execution of the will in question, proponent provided substantial amounts of money to decedent and his brother; the money being repaid without interest within approximately one year of decedent's death. Furthermore, proponent lived periodically on the farm for many years and eventually resided there permanently. Decedent ultimately moved into the home which proponent occupied. During 1980, proponent began handling some bookkeeping and banking duties for decedent. Also, the son and grandchildren of proponent assisted with the farm operation and, on several occasions, were paid by decedent for their efforts.

In September of 1980, decedent, proponent and Leonard Heer all traveled to Illinois to obtain cancer treatments for decedent. Leonard Heer returned early to South Dakota from this trip and immediately left on vacation. Becoming concerned about the farm, decedent soon thereafter left Illinois with proponent and returned home.

Decedent telephoned his attorney on October 10, 1980, to arrange an appointment to execute a new will. Five days later, proponent drove decedent to the attorney's office. Decedent and his attorney met in a separate room to discuss the changes to be made in the will while, according to proponent and decedent's attorney, proponent remained in the lobby area. The trial court entered a finding of fact stating that proponent was not present when these changes were discussed. Testimony by a third party, however, was to the effect that proponent was with decedent and decedent's attorney at the time these changes were discussed.

On October 20, 1980, proponent again drove decedent to the attorney's office for the purpose of executing the new will. Due to the deteriorating health of decedent, he was not able to walk to the office of his attorney; hence, the will was executed in decedent's automobile. As the mechanics of execution were carried out, the attorney sat in the front seat with decedent, with proponent in the rear seat and the two witnesses to the will positioned at the sides of the automobile. At trial, proponent testified that she never spoke with decedent about the provisions of his will nor did she know anything with regard to the will until the day it was executed. Moreover, proponent testified that she had nothing to do with telling decedent what to put in the will.

Confronted with the evidence, the trial court perceptively stated in its findings of fact "[t]hat from the time that the proponent moved out to the Heer farm to help the decedent, her role in many respects was that of a wife to the decedent." But the trial court went on to conclude that no confidential relationship existed between these two individuals. Within this incongruity and the facts of this case, we find error.

A confidential relationship "exists whenever trust and confidence is reposed by the testator in the integrity and fidelity of another." In re Estate of Hobelsberger, supra, 85 S.D. at 291, 181 N.W.2d at 460 (1970). This Court in Hyde v. Hyde, 78 S.D. 176, 186, 99 N.W.2d 788, 793 (1959) (citations omitted),...