In re Brown's Estate

• Citation: 224 N.W. 942,55 S.D. 53
• Decision Date: 13 April 1929
• Docket Number: 5772.
• Parties: In re BROWN'S ESTATE.
• Court: South Dakota Supreme Court

224 N.W. 942

55 S.D. 53

In re BROWN'S ESTATE.

No. 5772.

Supreme Court of South Dakota

April 13, 1929

Appeal from Circuit Court, Fall River County; Walter G. Miser Judge.

Proceeding by Sena Johnson for the probate of the will of Anna C. Brown deceased, contested by John Brown and another. From a judgment reversing the county court and adjudging that the instrument was not entitled to probate, and from an order denying a new trial, proponent appeals. Reversed.

Burch and Campbell, JJ., dissenting.

Helm & Lewis, of Hot Springs, for appellant.

Williams Sweet & Tscharner, of Rapid City, and Wilson & Wilson, of Hot Springs, for respondents.

POLLEY J.

This is an appeal from a judgment reversing a judgment of the county court of Fall River county, and setting aside what purports to be the last will and testament of Anna C. Brown, deceased. The property involved consisted of a small house in the city of Hot Springs, some $200 or $300 in money, and a small amount of personal property. The contest is between a sister of the deceased who is named as the beneficiary under the will, and John Brown, husband, and Lillie Greenlee, an adopted daughter of the deceased, who claim the property as heirs at law of the decedent.

The will was denied probate by the circuit court on the sole ground that testatrix did not have sufficient mental capacity to make a disposition of her property at the time the will was executed.

The evidence shows that for many years prior to her death Mrs. Brown lived practically alone and supported herself by working as a laundress. About the first of September, 1923, she became afflicted with pneumonia. She sent for Mrs. C. M. Williams, a neighbor with whom she had been acquainted for some 22 years. Mrs. Williams went to see her and did what she could for her for a couple of days; then, in order that she might have better care, moved Mrs. Brown to her house. This was on Monday, the 10th day of September. Mrs. Brown remained there all the following week and was confined to her bed all of the week except Friday, which day Mrs. Williams took her over to her own house; but what was her purpose in going, or how long she stayed, does not appear. On the following morning, Mrs. Williams called Dr. Rogers, a practicing physician in Hot Springs, who came, and after ascertaining Mrs. Brown's condition advised that she be taken to the hospital. Mrs. Williams took her to the hospital and appears to have remained there with her throughout the greater part of the day and the following night. During the day Mrs. Brown requested Mrs. Williams to get Mrs. Wasson. This was done. Mrs. Wasson was of the same religious faith as Mrs. Brown, and most of her time throughout the remainder of the day and night appears to have been taken up with matters pertaining to Mrs. Brown's spiritual welfare. During the evening Mrs. Brown expressed a desire to make a will. Mrs. Williams asked Dr. Rogers to draw the will. He declined and suggested that Mrs. Williams do it herself, and this she proceeded to do. She first ascertained from Mrs. Brown the disposition she wished to make of her property, then went to the desk in the office of the hospital and prepared the instrument now in the record as Exhibit A. She then took it to Mrs. Brown and read it to her. She said it was the way she wanted it, and with the aid of Mrs. Williams signed it. Mrs. Williams, Mrs. Wasson, and Dr. Rogers were all present when it was signed. They all knew she signed it as her last will and testament, and they all signed as witnesses.

It is the claim of contestants that at the time of the execution of the will decedent had not sufficient mental capacity to make an intelligent disposition of her property and the will was not executed and witnessed in the manner required by statute, and upon these points the trial court made the following finding of fact: "V. That at the time the said instrument in writing, dated September 15, 1923, which instrument was at the trial of this Court identified as being marked Exhibit 'A' and which instrument was alleged by the proponents to be the Last Will and Testament of said Anna C. Brown, was written by Mrs. C. M. Williams, only seven hours before the death of Anna C. Brown deceased, and while in her last sickness, and in form executed at a time when the said Anna C. Brown was in a condition of coma, seriously ill, very weak and only partially conscious, and when she was not of sound and disposing mind and memory and did not possess sufficient testamentary capacity to make a will or understand the consequences of her acts or to make a disposition of any of her property; that at the time said instrument in writing was made and in form executed, the said Anna C. Brown, now deceased, was not of sufficient mental capacity to understand and did not understand the contents or nature of said written instrument and that she did not in form execute said written instrument as her own free act and deed, with any understanding of the same."

We believe that this finding is not only unsupported by the evidence, but that it is contrary to the preponderance of the evidence. That the testator was very sick and weak physically cannot be questioned. While this fact is material, it is not controlling, so long as she had sufficient mental strength to make an intelligent disposition of her property. Upon this point the evidence showed that the decedent was a woman of at least average intelligence. One witness described her as being strong willed. When she realized that she could not recover, she expressed a desire to make a will. Mrs. Williams and Mrs. Wasson were present. She said she wanted to give her property to her sister, Sena Johnson, who resided at Pontiac, Ill. She also said that she did not want her husband or her adopted daughter, Mrs. Greenlee, to have any of it, and their names were mentioned in the will only because she thought it was necessary to leave them something. Mrs. Williams made an outline of the will as Mrs. Brown gave her the directions, and it is not claimed that at that time she was not in the full use of her mental faculties. Mrs. Williams then went to the hospital office and prepared the will. How long she was gone the record does not show, but when she returned with the will prepared as it now appears in the record, it was read over to Mrs. Brown in the presence of Mrs. Wasson and Dr. Rogers, and it is not claimed by either of them that the will as so read was not just as decedent had directed that it should be. Mrs. Williams testified that when she read the will to Mrs. Brown she said, "That is good, it is all right," or words to that effect. She then held Mrs. Brown's arm while she signed the will.

Mrs Wasson testified as follows: "I was summoned to the Sister's Hospital in Hot Springs on September 15, 1923. Mrs. Williams came and got me. Mrs. Brown was sitting up in bed there when I reached the hospital. She could talk and understand everything I told her. Mrs. Brown was Norwegian, I am Swede. Mrs. Brown talked in Norwegian and I can talk it. I always asked her in English and she answered in Norwegian. She was short of breath and, you understand, she didn't converse like I am now, but she understood and said what she wanted. Her answers were rational to my questions. I saw Exhibit 'A' when it was written in Mrs. Brown's room in the Sister's Hospital. I saw Mrs. Brown sign the signature 'Anna C. Brown' on the third page of Exhibit 'A.' She signed it in her room in the Hospital on the 15th day of September, 1923, if I remember correctly. It was the same day as Mrs. Williams took me to the hospital, about the middle of the evening, nine or ten o'clock probably. I saw Dr. Rogers sign the name J. S. Rogers on the third page. Mrs. Williams signed the signature Mrs. C. M. Williams on the third page. Just met Dr. Rogers that evening. Have seen him since. Am acquainted with Mrs. Williams. The third signature on the page as witness is mine. All those signatures were placed on there the evening of September 15. Mrs. Brown signed her name first, and the witnesses signed after her. The three witnesses were right in the room when Mrs. Brown signed, and also when each signed. Before that instrument was drawn and signed that evening Mrs. Brown spoke to me about disposing of her property on her death. First spoke of it in the evening, after supper. I can't tell just what she said because there were other things said before prior to that but I asked her if she had got everything fixed all right and she said 'No,' then I asked her if she wasn't going to and she said 'Yes' or nodded her head-she spoke very low. I asked her what I should do with it and if she wanted us to make a will and who to and she went on and told. She told me to make it out to her sister; I was not acquainted and I asked her where she was and she told me; then I says to her, 'I can't do that;' I asked Mrs. Williams to do it and she asked her if that would be all right and she said 'Yes.' Mrs. Williams was there when we had this conversation. She (Mrs. Brown) told me to have it made up to her sister; I wanted to know where she was; she gave me the names and all about it. Then I think Mrs. Williams said something about brothers and I asked if she had more than that; she said she had a brother-no, two brothers. Well I wanted to know what she was going to do with it and she said, 'Give it all to my sister.' I said, 'Don't your brothers get anything?' and she said, 'No.' I think Mrs. Williams said something about Mr. Brown and I asked her what she was going to do. I says, 'Is that your husband?' and she said 'Yes.' I asked 'What are you going to do about this?' and she said, 'Nothing, he is not mine.' I didn't know anything about Mrs. Greenlee then. I think Mrs. Williams said...