Johnson v. Shaver

Citation172 N.W. 676,41 S.D. 585
Decision Date13 May 1919
Docket NumberNo. 4427.,4427.
PartiesJOHNSON et al. v. SHAVER et al.
CourtSupreme Court of South Dakota

41 S.D. 585
172 N.W. 676

JOHNSON et al.
v.
SHAVER et al.

No. 4427.*

Supreme Court of South Dakota.

May 13, 1919.


Appeal from Circuit Court, Tripp County; Wm. Williamson, Judge.

Will contest by Ellen Johnson and Marguerite Golder against Jean Shaver and Theodora Smith. The will was admitted to probate by the county court, and contestants appealed to the circuit court, which also admitted the will to probate, and contestants appealed to the Supreme Court, where the judgment of the circuit court was reversed on questions of practice (37 S. D. 397, 158 N. W. 734), and from a judgment entered upon the second trial admitting the will to probate, and from an order denying a new trial, contestants appeal. Judgment and order appealed from reversed.

Smith, P. J., and McCoy, J., dissenting.

[172 N.W. 677]

Dolezal & Johnson, of Fremont, Neb., Frank C. O'Halloren, of Winner, and E. O. Patterson, of Dallas, for appellants.

French, Orvis & French, of Yankton, and Doherty & Talbott, of Winner, for respondents.


WHITING, J.

One James Golder died in this state on August 23, 1914, leaving property and a will purporting to dispose thereof. He was 59 years old at the time of his death, and he left surviving him four children: Jean Shaver, aged 25 years; Ellen Johnson, aged 23 years; Theodora Golder, aged 21 years; and Marguerite Golder, aged 19 years. By the terms of said will Ellen and Marguerite received $5 each, Theodora $4,000 and Jean the residue of all property, real and personal, which probably amounted in value to some $20,000. Jean was appointed executrix. When Jean proposed this will for probate, Ellen and Marguerite contested same, alleging testamentary incapacity and undue influence. The county court admitted the will to probate. Upon appeal and trial de novo, the circuit court admitted such will to probate. Upon appeal to this court we reversed the circuit court on questions of practice. In re Golder's Estate, 37 S. D. 397, 158 N. W. 734. Upon second trial in circuit court such court made findings that said James Golder was, at the time of the execution of such will, of sound and disposing mind, and not acting under undue influence.

From the judgment entered upon such findings and from an order denying a new trial, this appeal was taken. The sole question for our consideration is whether or not the trial court erred in the above findings.

There are certain propositions that are so well established as to need no citation of supporting authorities; others that have been settled in this jurisdiction by the decisions of this court; and others concerning which the courts are in dispute, but which we deem supported both by reason and the so-called “weight of authority.”

[1][2] Every person competent to contract has a right, given by statute, to dispose of property by will subject only to such limitations as a sound public policy may dictate. In the exercise of such right he may obey the dictates of his own will and feelings whether they are such as others would commend or condemn. But while the foregoing is the unquestioned rule of law, and while seemingly unjust and unnatural bequests or devises are not alone sufficient evidence of mental incapacity or undue influence, they are circumstances entitled to consideration and weight on both issues, and they may be sufficient to impose on the proponent “the necessity of giving some reasonable explanation of the unnatural character of the will, or, at least, of showing that its character is not the offspring of mental defect, obliquity or perversion.” Redfield on the Law of Wills, 515; Walls v. Walls (Ky.) 99 S. W. 969;Gay v. Gillilan, 92 Mo. 251, 5 S. W. 7, 1 Am. St. Rep. 712. “Although the testator has the abstract right of disposing of his estate by will as he may desire, yet a will which produces unnatural and unjust results demands close judicial scrutiny.” Alexander on Wills, 884. And “in order to sustain any unjust, unnatural, or absurd will *** fair proof at least should be afforded that the testator was of sufficient capacity *** to comprehend its import; and, furthermore, the trier of the case should believe that neither essential mistake on his part nor the fraud nor undue influence of others about him produced so unhappy a disposition.” Schouler on Wills, etc., § 77.

[3] The burden, under our statute, is upon the proponent of a will to establish the testamentary capacity of the testator. Section 998, Rev. Civ. Code, section 604, Rev. Code 1919; section 44, Rev. Prob. Code, section 3211, Rev. Code 1919; section 50, Rev. Prob. Code, section 3229, Rev. Code 1919. It was so held under similar statutes in Layman's Will, 42 N. W. 287, and in Seebrock v. Fedawa, 30 Neb. 424, 46 N. W. 650. This is the generally recognized rule regardless of statutes. Alexander on Wills, 541, 547; Schouler on Wills, § 225. In the light of section 50, Rev. Prob. Code, supra, which provides:

“If the court be satisfied upon the proof taken that the will was duly executed, and that the testator was, at the time of the execution thereof, of sound and disposing mind, and not acting under duress, menace, fraud or undue influence, a certificate of the proof and the facts so found, signed by the judge and attested by

[172 N.W. 678]

the seal of the court, must be attached to the will”

-the following from Alexander on Wills, 543, is especially pertinent:


“The law requires that no will be admitted to probate except that of a testator of sound mind; and, unless the court is fully satisfied on this point, the instrument should be rejected.”

[4][5] Where there is mental incapacity rendering one incompetent to make a will, there cannot be undue influence in a legal sense, as the existence of undue influence presupposes a will which, without such influence, would have been valid. Gwin v. Gwin, 5 Idaho, 271, 48 Pac. 295; Alexander on Wills, 880. One who is mentally incompetent to do a certain act cannot, as to such act, be the subject of coercion. But it is often a close question whether the invalidity of a particular will should be placed upon mental incapacity or upon undue influence. Certain it is that while mere physical weakness is not necessarily evidence of undue influence (Hacket v. Hackett, 33 S. D. 208, 145 N. W. 437), evidence of physical and mental weakness is always material upon the question of undue influence (Ekern v. Erickson, 37 S. D. 300, 157 N. W. 1062; Schouler on Wills, § 226; 40 Cyc. 1146). As said in Alexander on Wills, 491:

“Undue influence is associated with testamentary capacity, since the amount of influence necessary to affect the testator varies according to the strength of his mind.”

[6][7] The burden is upon a contestant to establish undue influence. Ekern v. Erickson, supra. To sustain such burden, however, it is only necessary that there be a preponderance of the evidence showing undue influence. Schouler on Wills, § 242; Alexander on Wills, 931. But, as above noted, where the will contains unjust or unnatural provisions, it demands close judicial scrutiny; the onus devolves upon the proponent to prove a reasonable explanation of the unnatural character of the will; there must be fair proof that the testator had mental capacity to comprehend its import; and the court must, from all the evidence, be led to believe that undue influence did not produce the unjust or unnatural disposition.

[8][9][10] Undue influence is not usually exerted in the open, and it is therefore usually solely through inferences drawn from surrounding facts and circumstances that a court arrives at the conclusion that a will is the product of undue influence working on the mind of the testator. Schouler on Wills, § 242. The relations of the parties, the conditions that surround them, the attitude that they occupy towards each other, the influences that control their actions (Gross v. Courtley, 161 Ky. 152, 170 S. W. 600), the habits and inclinations of the testator, his purposes and wishes expressed at times and under conditions lending verity to his statements-all furnish guidance for the court. The keeping of the existence of a will secret from those who have an equal right to know of its existence is a badge of undue influence. Watkins v. Brant, 46 Wis. 425, 1 N. W. 82. Declaration of testator made previous to the execution of the will, and indicating a purpose inconsistent with the provisions thereof, “is competent and relevant, in connection with other evidence, as tending to show susceptibility to undue influence.” Ekern v. Erickson, supra; Schouler on Wills, § 242, p. 292. And it is also competent and relevant on the question of testamentary capacity. Alexander on Wills, 493, 494; Redfield on Law of Wills, 537; Sheehan v. Kearney, 82 Miss. 688, 21 South. 41, 35 L. R. A. 102. In this latter case will be found a very exhaustive discussions and résumé of the authorities upon the competency of such declaration as proof of undue influence. While mental delusions, which are not connected with or have no effect upon the testamentary act, are not sufficient to invalidate the will (Irwin v. Lattin, 29 S. D. 1, 135 N. W. 759, Ann. Cas. 1914C, 1044), yet evidence of such delusions are competent...

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