Koch's Estate, Matter of

• Decision Date: 10 November 1977
• Docket Number: No. 9374,9374
• Parties: In the Matter of the ESTATE of Chris Geo. KOCH, Deceased. Arlene STEINER, Anton J. Steiner, Russell J. Koch, Lena Granier and Margaret Dietzman, Petitioners and Appellants, v. Marlys A. DICKMEYER, Lela M. Grim, Karla J. Robinet, Connie K. McMaines, and Larry A. Koch, Respondents and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 655

259 N.W.2d 655

In the Matter of the ESTATE of Chris Geo. KOCH, Deceased.

Arlene STEINER, Anton J. Steiner, Russell J. Koch, Lena

Granier and Margaret Dietzman, Petitioners and Appellants, v. Marlys A. DICKMEYER, Lela M. Grim, Karla J. Robinet, Connie

K. McMaines, and Larry A. Koch, Respondents and

Appellees.

Civ. No. 9374.

Supreme Court of North Dakota.

Nov. 10, 1977.

Morris A. Tschider, and Richard P. Rausch, Bismarck, for petitioners and appellants; argued by Morris A. Tschider and Richard P. Rausch, Bismarck.

Lundberg, Conmy, Nodland, Rosenberg, Lucas & Schulz, Bismarck, for respondents and appellees; argued by Irvin B. Nodland, Bismarck.

ERICKSTAD, Chief Justice.

This is an appeal from a judgment of the Burleigh County District Court, affirming a decree of the county court, which denied admission to probate of the purported Last Will and Testament of Chris Geo. Koch. The appellants, proponents of the will, are the deceased's brother, brother-in-law, and sisters, and the appellees, contestants of the will, are his five children.

The issue in this case is whether or not the Last Will and Testament of Chris Geo. Koch dated March 11, 1974, was the product of insane delusions rendering the will null and void for want of testamentary capacity.

The decedent, Chris Koch, married Elizabeth Koch in 1940. There were five children born of this marriage, the appellees in this case. Chris was essentially a farmer, but for a number of years he also hauled propane for the Farmers Union Oil Company on a commission basis.

According to Elizabeth Koch, there were no significant marital problems until the 1960's. In the 1960's, problems started to arise as Chris became suspicious of his family and became very depressed, showing suicidal tendencies.

Chris' daughter Lela testified that in 1964, Chris, while shaking and crying, related to her that her mother was bad. He stated that she never did anything and was running around with other men. The next day he told his daughter that he had tried to tip the truck over when he was driving so as to kill himself. Lela then set up an appointment for Chris with Dr. Thakor, a psychiatrist in Bismarck. After this meeting, Dr. Thakor recommended that Chris be admitted to the psychiatric ward of the St. Alexius Hospital, but Chris objected. He did let himself be admitted to a medical ward of the hospital, and remained there for about a week.

Chris' son Larry testified that in 1965, Chris said to Larry that he had that day tried to kill himself by trying to turn over his truck. He went on to state that he had no reason to live, he wanted to die, and he pictured himself often hanging from a beam by a rope. Later that day, Larry and his mother found the truck running in the garage with the door closed and with Chris lying alongside the truck. Larry testified that when they got him outside, Chris kept saying, "Nobody cares and I want to die."

In 1969, Chris suffered a severe heart attack and was hospitalized for over a month. During this time, his wife and children spent long hours in the hospital and at his bedside. Following this heart attack, according to Elizabeth and the children, they noticed disintegration of his mind. They all stated that they came to the realization that Chris was sick mentally as well as physically.

Larry Koch testified that he was told by his father many times after 1969 that he wanted to die and that nobody cared for him. He said this occurred several times after Chris had heart pains, and often he refused to be taken to the hospital or to have his medicine. At times Larry had to force him to get help or to take his medicine.

During this time, according to Larry, Chris accused his wife of being an alcoholic and being unfaithful to him. There were periods, sometimes for months in duration, when he would not speak to his wife.

Larry testified that there were also a couple of incidents when Chris yelled at and pushed him for no apparent reason. He then became silent, and the next day he would be all right again. Larry also testified that in March, 1973, Chris exploded one evening during dinner for no apparent reason and threatened to go downstairs and shoot himself. He had to be physically restrained by Larry at that time.

According to his daughter Connie, she also was told by her father, after 1969, of his suicidal thoughts and his suspicions of her mother. She testified that he stated that everybody was plotting against him, including his friends. She also said that he portrayed himself differently when non-family persons were around. He would be in deep depressions and be relating his delusions; the next moment a neighbor would come over and his personality would change within seconds and he would be normal again.

Dr. D. A. Miller was Chris' physician following the heart attack in 1969, and saw him frequently from 1969 to 1973. He saw Chris both as an outpatient and as an inpatient as Chris was hospitalized several times during that period for his heart condition. Dr. Miller testified that by early 1973, he concluded that Chris needed psychiatric help because of his depression and his suicidal tendencies.

Chris, in 1973, did come under the care of psychiatrists after some more overt gestures at taking his own life. In January and February of 1973, he saw several psychiatrists and counselors at the Memorial Mental Health Center in Mandan and at St. Alexius Psychiatric Service in Bismarck.

Dr. Gaebe, in his psychiatric evaluation of Chris, stated:

" . . . It was also evident throughout the interview that he uses projection to a great degree, that he is quite suspicious of and angry with his wife and at least several of his children feeling that the children and his wife are against him. He does admit to suicidal thoughts . . . " In his hospital records from St. Alexius Hospital is a discharge diagnosis of Chris on February 9, 1973, made by Dr. Gaebe. This discharge diagnosis stated:

"Involutional psychotic depressive reaction, with paranoid feelings toward his family."

Dr. Miller, in March, 1973, advised Chris' family that if Chris would not voluntarily seek treatment, the family should seek to have him committed. The family agreed to do this, and to carry out this decision, the two eldest daughters signed the petition for a mental health board hearing. On April 2, 1973, a hearing was held before the Burleigh County Mental Health Board. Elizabeth Koch and the two eldest daughters appeared and testified to the necessity of a commitment to the hospital. There were several neighbors and relatives who appeared and testified against commitment. Dr. Miller did not attend the hearing but sent a letter which stated:

"Over the last several months the patient had become extremely depressed and on many occasions has verbalized death wishes to me. Because of his severe depression and because of recurrent obsessive thoughts that his wife was unfaithful to him and that his family was unfaithful to him and recurring expressions of wishing to die he was admitted to the St. Alexius Psychiatry Service on February 4, 1973, under the care of Dr. Gaebe. Since that time he has intermittently been followed by Dr. Gaebe at the Memorial Mental Health Center but the patient has shown no improvement and has shown resistence to treatment and has broken off going to the Mental Health Center for help. He has continued to be extremely depressed feeling that he is living in hell at the present time and that his family is all against him. His repeated statements to his wife in regard to her inability to care for him and his feelings that she is having affairs with other men whenever she leaves the home have caused his wife to have an acute mental break herself. His wife spent a week in St. Alexius Hospital this past week due to an acute severe anxiety reaction related to Chris' behavior at home."

The mental health board determined that Chris should not be committed. Shortly after that hearing, Chris wrote letters to Larry and Connie telling them never to come home again. On April 7, 1973, Chris allegedly executed a will disinheriting his wife and children.

Soon thereafter divorce proceedings were commenced and a hearing was held on December 22, 1973. In the time between the commitment hearing and December 22, there was little, if any, contact between Chris and the other members of the family.

At the divorce hearing, three children testified in support of their mother's effort to secure one-half of the property. After the hearing ended on December 23, according to Larry's and Connie's testimony, there was a tearful meeting of the family when the children all expressed their love to their father. Through the divorce decree of January 30, 1974, each party received one-half of the property. Between that time and Chris' death on October 29, 1976, there were unsuccessful attempts at a reconciliation between Chris and Elizabeth. Chris also spent some time with each of his children during that period. On March 11, 1974, Chris signed the will and testament which is being contested in this case. In that will, he specifically excluded his former spouse and children and gave his property to his brother, brother-in-law, and sisters.

There was also testimony from several persons, that Chris was able to function well in society. His neighbors thought that he was completely competent, and apparently had no knowledge of his mental problems and suicidal tendencies. Chris told several people, after the divorce hearing, that his children had sided with their mother and against him at the commitment and divorce proceedings. He also told several people that he thought the commitment proceeding was commenced to get his money.

Dr. Clifford Peters, who treated Chris' heart condition from April 4, 1973, until Chris' death, testified that Chris appeared perfectly rational to him. He testified that Chris' mental capacity was quite adequate and that he found no indication of any...