In re Tjark's Estate
| Decision Date | 15 October 1929 |
| Docket Number | 6770. |
| Parties | In re TJARKS' ESTATE. v. NIEUWENHUIS et al. STATE |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Charles Mix County; John G. Bartine Judge.
Application by Mrs. Mary Nieuwenhuis and others for the probate of the will of Henry P. Tjarks, deceased, wherein Albert Nieuwenhuis was made administrator, and the State of South Dakota filed a contest. Judgment for the State, and the proponents appeal. Affirmed.
G. M Caster, of Lake Andes, for appellants.
M. Q Sharpe, Atty. Gen., and E. D. Roberts, Asst. Atty. Gen., for the State.
This controversy arises out of a contest of the will of Henry P Tjarks, deceased, late of Charles Mix county. The petition to contest said will was filed by the respondent, state of South Dakota. It alleged that Tjarks died intestate and without heirs, and that a certain alleged copy of an alleged lost will of the decedent, which had previously been admitted to probate, was not in fact a copy of any will executed by the decedent, and that the same had been fraudulently manufactured and offered for probate for the purpose of defrauding the persons lawfully entitled to succeed to the property of the decedent. The case was first before this court, by the above title, in 43 S.D. 198, 178 N.W. 976, where it was held, among other things, that a new trial should be granted to permit the introduction of certain evidence rejected at the first trial; in 46 S.D. 154, 191 N.W. 446, where an order of the trial court allowing a new trial was affirmed; and in 49 S.D. 181, 207 N.W. 77, where it was held that the verdict of a jury was advisory only, and that the case should be remanded, to allow the trial court to make and enter its findings of fact and conclusions of law. On this appeal the sole question presented is whether the evidence is sufficient to sustain the decision of the trial court to the effect that the alleged lost will was never executed, and that the decedent died intestate and without heirs. One of appellant's witnesses, Carl Hennies, testified that he had been a carpenter, and, at the time of the transaction narrated by him, was a grain buyer. On October 22, 1915, the decedent, Tjarks, came to the grain elevator of witness in the town of Ravinia. He had with him and produced two blank forms of will, and asked the witness to draft a will. After some conversation, the witness undertook to do so. The decedent produced from his pocket a piece of paper upon which was written the names and addresses of the devisees. Decedent stated that he desired each of them to receive one-fourth of his estate; the beneficiaries being cousins of his deceased wife. The decedent stated that he and witness would take the will to Wagner the next day and have it witnessed by persons whom the decedent named. The witness took the two blank wills, filled them both in, dated them as of the succeeding day, when the will was to be signed, and then decided that he would use the proposed will which he thought the best of the two blanks which he had filled in. The next day witness and Tjarks went to Wagner, and looked for one Coughlin, whom the decedent desired as a witness for the will. Not finding Coughlin, the parties went to the Wagner State Bank, and procured one Evers as a witness. At that bank decedent signed his name, and the will was executed in a manner required by the statute. The decedent then delivered the executed will to Hennies, who placed the same in his pocket.
The witness Hennies was not in any way related to either the alleged testator or the beneficiaries named in the alleged will. The part of the will written into the blank form is as follows:
"To my wife's cousins, as follows: One-fourth to the children of Peter Plattje, who lives near Avon, S. D., the children's first names I do not remember; one-fourth to Mrs. Lydia Endicotte, who lives in Oregon; one-fourth to Mrs. Mary Nieuwenhuis, who lives near Harrison, S. D.; one-fourth to Mrs. Jennie Munneke, who lives near Joubert, S. D."
The witness Hennies continued to the effect that in January, 1916, Tjarks died, and one Barnard Brandt, a banker of Avon, proceeded to administer the estate. Shortly thereafter Hennies, in preparing to leave the business of grain buyer at Ravinia, was cleaning up some papers which he had around the elevator and in his satchel, and, through inadvertence, he burned what he supposed was a copy of the will that he had originally made, but which, in fact, proved to be the original instrument.
The witness Evers testified for appellant that he was formerly county treasurer of Charles Mix county, and, at the time of the transaction by him narrated, was vice president of the Wagner State Bank. He testified that Tjarks and Hennies came to his bank on October 23, 1915, and witness corroborated Hennies' statements as to the execution of the will, and, like the witness Hennies, this witness also testified to the contents of the alleged lost instrument, claiming to do so from recollection independent of the copy offered in evidence. Each witness identified the alleged copy of the lost will as a true copy. In addition to this proof, the witness Nieuwenhuis, who is the husband of one of the beneficiaries in the alleged lost will, testified to a conversation with the decedent, in which the latter stated that he had made a will "giving the Plattje children" all his property. Other witnesses identified the beneficiaries as the Plattje children.
No part of the above-stated testimony was directly contradicted by any witnesses, nor was any fact proven by respondent which may be said to be a direct contradiction of any part of appellant's proof as aforesaid. For this reason appellant contends that the trial court was without right or power to arbitrarily disregard the testimony of the witnesses above named; that there is no evidence to sustain the decision which supports the contest of the will; and that the findings are against the undisputed evidence. To support their position appellants refer to a certain general rule stated in Miller's Will, 49 Or. 452, 90 P. 1002, 1006, 124 Am. St. Rep. 1051, 14 Ann. Cas. 277, and in numerous other cases cited by appellants, as follows: "It is firmly established everywhere that, as a general rule, when a disinterested witness, who is in no way discredited by other evidence, testifies to a fact within the knowledge of such witness, which is not in itself improbable, or in conflict with other evidence, the witness is to be believed, and the facts so given are to be taken as legally established."
It is not to be denied that the legal duty of the trial court to enter findings in...
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