In re Rowlands' Estate

• Decision Date: 16 April 1945
• Docket Number: 8680.
• Citation: 18 N.W.2d 290,70 S.D. 419
• Parties: In re ROWLANDS' ESTATE.
• Court: South Dakota Supreme Court

18 N.W.2d 290

70 S.D. 419

In re ROWLANDS' ESTATE.

No. 8680.

Supreme Court of South Dakota

April 16, 1945

Rehearing Denied June 8, 1945.

R. A. Smiley, of Belle Fourche, and Robert C. Hayes and Alex Rentto, both of Deadwood, for appellant.

Burton Penfold, of Belle Fourche, and Chas. L. Brady, of Buffalo for respondent.

ROBERTS Judge.

This appeal involves a contest of the will of Katherina Rowlands, who died August 18, 1940, at the age of (78 years. Petition for admission of her will to probate was filed by James P. Walsh a beneficiary under its terms as well as one of the executors named therein. Objections to probate were filed by Mary K Brink, a niece of the deceased, challenging the validity of the will on the grounds that it was not executed in the manner and form prescribed by law; that testatrix did not know the contents of the will; and that she was induced to make the will through the undue influence of proponent. The circuit court on a trial de novo upon an appeal from the county court found the will valid and entered judgment sustaining its admission to probate. Contestant appeals from the judgment.

The document offered for probate is typewritten, bears date of March 18, 1937, and was signed by testatrix and two witnesses. Under the terms of her will, after giving directions as to the disposition of her body and the payments of debts, testatrix bequeathed $4,000 to a relative of her deceased husband, $2,000 to each of two relatives in Germany, $4,000 to Reverend James P. Walsh and to him the further sum of $1,000 to be used for masses. The attestation clause is full and complete and includes a recital that the will was signed and by testatrix declared to be her last will in the presence of the witnesses. The two subscribing witnesses and proponent testified to the circumstances surrounding the execution of the will. The subscribing witnesses testified that their signatures and that of Mrs. Rowlands are genuine and that they signed as witnesses at her request. Reverend James P. Walsh testified that he read the attestation clause in the presence of testatrix and the two witnesses, that she then signed the purported will and that the two witnesses signed in her presence.

Where the attestation clause is full and complete and was read by the witnesses or to them and there is no contest as to the genuineness of the signatures of the testatrix and the witnesses, there arises a strong presumption that the will was duly executed and to defeat probate the presumption must be overcome by clear and satisfactory evidence. Ross v. Taylor, 39 S.D. 608, 165 N.W. 1079; Hauer et al. v. Hauer, 45 S.D. 103, 186 N.W. 566; 76 A.L.R. 617. Such proof, strictly speaking, gives rise to an inference of fact that the will was duly executed and has probative force. One of the witnesses declared in an affidavit that testatrix did not sign in her presence. Later her deposition was taken and she testified: 'Q. About the fourth of September, 1940, you apparently signed a paper for Mr. Fitzgerald, an attorney in Omaha, in which it is stated that Mrs. Rowlands did not sign that will in your presence. A. That is not exactly the way I put it. I said I didn't remember whether it was signed in my presence, when I put my signature on it. That is the way they wrote it up. I was worried and under a strain at the time and I couldn't remember anything.' The court had a right to consider the statement contained in the affidavit and subsequently repudiated in connection with the credibility of this witness, but so far as proof that the requirements of the law were observed is concerned, there is other explicit testimony and the inference deducible from the attestation clause, and taking the case as a whole we are of the opinion that there was ample evidence to sustain the finding that the will was executed in compliance with statutory requirements.

It is claimed by contestant that there is no evidence in the record showing that testatrix ever read the will or that the will was read to her. We agree that she could not have made a valid will without knowing its contents. However, there is no statutory requirement that a will be read to the testatrix or to the witnesses thereto prior to its execution. Testatrix may have desired that the contents of her will be not revealed. It is sufficient if the court was satisfied by competent evidence that the contents of the will were known to and approved by her at the time it was executed as a will. Testatrix came to this country in 1899 from Germany. It affirmatively appears that she could read German' but the evidence tends to show that if she read English at all, she read with much difficulty. Evidence tending to prove that she could not read the language in which the will was written and could not write it except to sign her name do not tend to establish either her inability to make a will or her ignorance of its contents.

In the ordinary case of the execution of a will, the presumption of due execution extends to include knowledge of its contents. 68 C.J., Wills, § 751; L.R.A.1918D, 747. If a testatrix by reason of physical or educational disability as blindness or inability to read the language in which the will is written is unable by the exercise of her own faculties to determine for herself whether it expresses her testamentary desires, there is some conflict of authority as to the admissibility of her will to probate without affirmative proof that its contents were made known to her. In some cases, presumption of knowledge of the contents has been held to arise from the due execution of the will although decedent was illiterate or blind. Lipphard v. Humphrey, 209 U.S. 264, 28 S.Ct. 561, 52 L.Ed. 783, 14 Ann.Cas. 872; In re Bakke's Will, 160 Minn. 56, 199 N.W. 438, 37 A.L.R. 597. In other cases, it has been held that the presumption of knowledge does not arise in case of such disability. Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 63 A.L.R. 1188; In re Bull, 111 N.Y. 624, 19 N.E. 503; Maxwell v. Hill, 89 Tenn. 584, 15 S.W. 253. In re Gluckman's Will, 87 N.J.Eq. 638, 101 A. 295, L.R.A.1918D, 742, it was held that if a testator by reason of physical or educational disability cannot read the language in which a will is written an additional burden is imposed upon the proponent to show that testator was made acquainted with the provisions of the will if there are any circumstances leading the court to suspect that testator may have been imposed upon.

Contestant claims that the will was written by proponent, but the evidence does not sustain her in this contention. Testatrix had the will in her possession and produced it for signing by herself and witnesses. Persons 'do not commonly sign papers without knowledge of what is embraced within them; and this is true alike of those who can read and those who cannot.' Vernon v. Kirk, 30 Pa. 218. The instrument propounded for probate was shown to have been duly executed by testatrix and she having the instrument in her possession before execution had opportunity of learning its contents. Under these circumstances, she is...