In re Schmidt

• Decision Date: 16 October 1944
• Docket Number: 8469.
• Citation: 16 N.W.2d 41,70 S.D. 161
• Parties: In re SCHMIDT.
• Court: South Dakota Supreme Court

16 N.W.2d 41

70 S.D. 161

In re SCHMIDT.

No. 8469.

Supreme Court of South Dakota

October 16, 1944

George T. Mickelson, Atty. Gen., and Irwin R Erickson, Asst. Atty. Gen., for the State.

Frank S. Tait, Jr., of Milbank, for defendant.

A O. Schmidt, of Milbank, pro se.

PER CURIAM.

The accused A. O. Schmidt, was charged in a formal complaint with unprofessional conduct. Issue was joined, and this court thereupon appointed Hon. R. C. Bakewell one of the judges of the Fourth Judicial Circuit, as referee to try the issues, make findings of fact and recommendations thereon and report the evidence taken and the proceedings had to this court. Thereafter the referee returned his report together with his findings of fact and recommendations. The referee recommended that judgment be entered by this court revoking and cancelling the license of the said A. O. Schmidt to practice as an attorney and counselor at law in this state.

The facts as disclosed by the record and the findings of the referee are substantially as follows:

The accused was the attorney for the Adler Estate which was in the process of probate in Grant County, South Dakota. The heirs of this estate consisted of the widow, Helena Adler, and several children, among whom was one Amelia Schmidt. Amelia Schmidt was very ill in the spring of 1940 and confined in a hospital in Appleton, Minnesota. Helena Adler consulted the accused in his office at Milbank in the moth of March, 1940 and advised him that Amelia Schmidt desired to make a will and further advised him as to the content of such will. Thereafter, accused drew a will purportedly for Amelia Schmidt, wherein it was provided that Amelia's husband should receive upon her death the sum of $25 only. On either the 21st or 22d of March, the accused and Mrs. Adler drove to Appleton, Minnesota, and after spending some time with Amelia Schmidt, who was then seriously ill, the will which the accused had prepared was executed. Accused testified that the will was then placed in a dresser drawer in a room occupied by Amelia Schmidt and he returned on the following Sunday, obtained the will, placed it in a steel safe in his office and that it there remained until removed by him and taken to the Clerk of Courts office in Grant County and opened. It clearly appears from the evidence and in such a manner that it is not subject to dispute that someone had changed the date of this will after its execution and prior to its production at the office of the Clerk of Courts. The figures 22 had been carefully erased and the figures 28 inserted in their place, that is, the date had been changed from the 22d of March, 1940 to the 28th of March, 1940. The will had also been changed so as to make it appear that by this will any prior will made by the testatrix was revoked and cancelled. The will as originally drawn recited that no prior wills had been made. It further appears from the evidence that on ...