Appeal
from Circuit Court, Minnehaha County; John T. Medin, Judge.
In the
matter of the estate of Endre J. Vasgaard, deceased. Petition
by Robert Peterson, opposed by Helena Haugen and others. From
an adverse judgment, petitioner appeals.
Reversed
and remanded, with directions.
See
also, 248 N.W. 198.
CAMPBELL
Judge.
Endre
J. Vasgaard died January 18, 1932, being a resident of
Minnehaha county, S. D., and leaving estate therein
consisting of personal property of the estimated value of
$59,000. On May 17, 1929, he had executed a will naming his
son John as executor and disposing of all his property to his
wife Anna and his five children. The wife Anna presently
died, and thereafter, and on October 1, 1929, Vasgaard
executed a second will as follows:
"I, Endre J. Vasgaard, being of sound mind and disposing
memory, aware of the uncertainty of life and the certainty of
death, and being desirous of making a proper and an equitable
distribution of my property at my decease, I do make, ordain
publish and declare this to be my last Will and Testament in
manner and form following, that is to say:
"1st.
"It is my will, and I desire that all my just debts
shall be paid as soon as practicable out of the property of
which I die seized and possessed.
"2nd.
"Subject to the provisions in paragraph 1, and if I die
seized and possessed of any property, I give, the same to my
following children: Helena Haugen, John Vasgaard, Emelie
Lauritzen, Magdalena Sophy and Myrtle Jory, each share and
share alike and to be theirs absolutely and forever.
"3rd.
"I hereby appoint James Mee and Robert Peterson of
Centerville, South Dakota, to be the executors of this my
last Will and Testament, hereby revoking all former wills
made by me.
"In Witness Whereof, I have hereunto subscribed my name
this 1st day of October, A. D. 1929.
"Endre
J. Vasgaard."
The
will appears on its face to have been legally executed and
witnessed and was left in the custody of the executors.
Promptly after the death of the testator the executors
delivered the will to the county court of Minnehaha county
(section 3201, R. C. 1919) and on January 25, 1932
petitioned for the probate thereof.
Thereafter
the beneficiaries named in the will, who were also the sole
heirs at law of the testator, each being of sound mind and
full age, entered into the following written agreement:
"Contract of Family Settlement.
"In settlement of the purported controversy and contest,
all of the devisees and legatees joined in a contract of
family settlement as follows:
"This contract and agreement made and entered into by
and between Myrtle Jory, party of the first part, and Helena
Haugen, John Vasgaard, Emelie Lauritzen, and Magdelena Sophy,
parties of the second part, witnesseth:
"Whereas, Endre J. Vasgaard, now deceased, left an
instrument purporting to be the last will and testament of
said Endre J. Vasgaard, which instrument was purported to
have been executed by said deceased on or about the 1st day
of October, 1929, and which instrument has been presented for
probate in the County Court of Minnehaha County, South
Dakota, in the above entitled proceedings; and,
"Whereas, the party of the first part has filed a
contest and objections to the probate of said will, and from
which contest and objections it appears that the parties to
this contract constitute all the heirs at law of said
deceased, and all persons interested in the estate of said
deceased, and are the only persons entitled to distributive
shares in said estate, either under said purported will, or
otherwise; and.
"Whereas, it appears that the said deceased, on or about
the 17th day of May, 1929, made and executed his last will
and testament in accordance with his own wishes and in
accordance with the contract and agreement between the
parties to this contract wherein and whereby he recited that
he had
made certain advancements to the parties of the second part,
aggregating the sum of Sixteen Thousand Dollars ($16,000) to
each of the parties of the second part, and that at the time
of the execution of said will on May 17, 1929, he had
likewise made an advancement by transfer of property to the
party of the first part, aggregating Seven Thousand Dollars
($7,000); and,
"Whereas, by the terms of said will it was provided that
the party of the first part should receive out of the estate
of said deceased an additional sum of Nine Thousand Dollars
($9,000) before a division of the residuary part of said
estate, and that such residuary estate should then be equally
divided between all the parties to this contract, so that all
the parties to this contract would share equally in the
Estate of said Endre J. Vasgaard, deceased; and,
"Whereas, it further appears from the contest filed
herein by said Myrtle Jory that it was the wish of the
deceased, and the agreement between the deceased and all of
his heirs that his sole son, one of the parties to this
contract, John Vasgaard, should administer his estate; and,
"Whereas, it further appears from said contest that the
instrument presented to this court and purported to be the
will of said deceased, was executed at a time when said
deceased was of unsound mind and was probably not executed in
the manner and form required by law, and was obtained by
virtue of undue influence exerted over said deceased by the
parties presenting said instrument for probate, to-wit; James
Mee and Robert Peterson,
"Now, therefore, it is hereby agreed by and between all
the parties to this contract, as a family settlement, and by
all the parties interested in distributive shares of said
estate, either as heirs at law or otherwise, that for mutual
considerations, and for the purpose of avoiding any
controversies or contest in this matter, and for the purpose
of protecting and preserving the interests of all the parties
in interest in said estate, that said purported will so
presented by said James Mee and Robert Peterson, be and same
be set aside and declared not to be the last will and
testament of said Endre J. Vasgaard, and that the property in
the estate of said deceased, after payment of all just debts
and funeral expenses, and any expenses incurred in this
proceedings, prior to the making of this contract, be
distributed and divided in accordance with the terms and
conditions of the instrument or will of said Endre J.
Vasgaard, deceased, bearing date the 17th day of May, 1929,
and that John Vasgaard be appointed administrator of said
estate, and that a decree of distribution be entered herein
in said proceedings by this court, distributing said estate
in accordance with the terms and conditions of the will of
Endre J. Vasgaard made on the 17th day of May, 1929, that is
to say, that after payment of debts, funeral expenses, etc.,
as hereinbefore set forth, that there be paid out of said
estate to the contestant, Myrtle Jory, first the sum of Nine
Thousand Dollars ($9,000), and that the residue of said
Estate be thereafter distributed and divided in equal shares,
share and share alike, between all the parties to this
contract, and that the court in accordance with this
stipulation, contract and agreement, is hereby authorized to
deny probate to the instrument presented by James Mee and
Robert Peterson, authorized to set said purported instrument
aside, and upon final distribution of said estate, is
entitled and empowered by this contract, stipulation and
agreement to enter a decree in conformity with this contract.
"In witness whereof, all of said parties have here
subscribed their names this 15th day of February, 1932."
The
children advised the executors of the agreement they had made
and requested that the executors withdraw their petition for
the probate of the will, which they refused to do. Thereupon
the children filed written grounds of opposition to the
probate of the will, and contested the same. Various grounds
of contest were alleged, including lack of due execution and
attestation, mental incompetence of the testator, and fraud
and undue influence. No evidence was offered in support of
those allegations, however, and the only ground of contest
upon which any ultimate reliance was placed was the fact of
the execution of the contract above set out.
An
attempt to prohibit the county court from admitting the will
to probate failed (Haugen v. Larson, Judge [1932] 60
S. D.--, 244 N.W. 654); a majority of the judges of this
court expressing no opinion in the premises save only that
the writ of prohibition would not lie. The county court found
in favor of the proponents and ordered the admission of the
will to probate, from which decision the children took an
appeal to the circuit court of Minnehaha county. An effort to
compel the dismissal of that appeal by mandamus from this
court (Mee et al. v. Circuit Court [1933], 248 N.W.
198) was unsuccessful. The circuit court proceeded to hear
and determine the matter and made findings,
conclusions, and judgment in favor of the contesting
children, reversing the decision of the county court and
remanding the cause thereto, with directions to enter an
order refusing probate of the will.
From
that judgment of the circuit court the proponent Peterson
(his coproponent Mee being now deceased) has now appealed to
this court.
The
matter of family contracts in relation to the settlement and
distribution of the estates of decedents presents many
interesting angles and is briefed by both parties to this
appeal with ability and diligence. Numerous cases will be
found collected in comprehensive annotations in 46...
