In re Meyer’s Estate
| Decision Date | 27 July 1943 |
| Docket Number | 8481 |
| Citation | 69 S.D. 339,10 N.W.2d 516 |
| Parties | IN THE MATTER OF THE ESTATE OF LOUISA MEYER, Deceased. WILLIAM HOEFER, Appellant, v. HERMAN SPILKER, Respondent. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Meade County, SD
Hon. Chas. R. Hayes, Judge
# 8481—Affirmed
John T. Milek, Sturgis, SD
Attorneys for Appellant.
Dan McCutcheon, Lem Overpeck, Belle Fourche, SD
Attorney for Respondent
Opinion filed July 27, 1943
On March 20, 1937, the will of Louisa Meyer, deceased, was presented for probate in the County Court of Meade County. The will included small bequests to a sister and to nephews and nieces living at the time of the death of testatrix. The residue of her property was devised and bequeathed to two nephews, Arnold Spilker and Herman Spilker. The latter was named as executor, Elizabeth Poss, a niece, resisted probate of the will on the grounds of incompetency and undue influence and the executor and proponent of the will made answer thereto. The county court after hearing found in favor of contestant. Upon appeal to the circuit court, judgment after trial de novo was entered sustaining validity of the will.
The present proceeding to contest the will after probate was instituted by William Hoefer, a nephew of the deceased. Contestant alleges that he has learned since the probate of the will that the deceased was at the time of the execution of the instrument mentally incompetent and was not capable of making a will; that the “purported will was not the free and valid act of the said decedent but was procured to be made by the said undue influence of the said Arnold Spilker”; and that the testimony of the attorney “who prepared and presented the said purported last will and testament, has been materially changed in that at the time for the offering of the probate of the said instrument, the said attorney testified that there were three wills made during the year 1933 but that at a second hearing on the said matter the said attorney testified that there was but one will made and that was the one offered for probate.”
The executor and proponent of the will moved in county court to dismiss the proceeding on the ground that the contest was not predicated on evidence discovered since the probate of the will. The motion was granted. Petitioner has appealed to this court from the order of the circuit court sustaining dismissal of the proceeding by the county court.
The only question presented is the effect of the determination of the issues submitted in the previous contest on the right of appellant to contest the validity of the will after it had been admitted to probate. SDC 35.0301 provides for contest of a will before probate and SDC 35.0306 provides for contest after probate. The latter section reads as follows:
“When a will has been admitted to probate, any person interested therein may, at any time within one year after such probate, contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved a sworn petition in writing alleging that evidence, discovered since the probate of the will, the material facts of which must be set forth, shows:
(1) That a will of a later date than the one probated, revoking or changing the former will, has been discovered and is offered; or
(2) That some jurisdictional fact was wanting in the former probate; or
(3) That the testator was not competent, free from duress, menace, fraud, or undue influence when the will allowed was made; or
(4) That the former will was not duly executed and attested.” The probate of a will is a proceeding in the nature of a proceeding in rem. Carter v. Frahm, 31 SD 379, 141 NW 370; State v. Nieuwenhuis, ...
To continue reading
Request your trial