Metz' Estate, In re

• Decision Date: 05 January 1960
• Docket Number: No. 9705,9705
• Citation: 78 S.D. 212,100 N.W.2d 393
• Parties: Matter of the ESTATE of Wesley METZ, Deceased. Herman IMEL, Proponent and Appellant, v. Maude METZ, Contestant and Respondent.
• Court: South Dakota Supreme Court

Page 393

100 N.W.2d 393

78 S.D. 212

Matter of the ESTATE of Wesley METZ, Deceased.

Herman IMEL, Proponent and Appellant, v. Maude METZ, Contestant and Respondent.

No. 9705.

Supreme Court of South Dakota.

Jan. 5, 1960.

Rehearing Denied Feb. 17, 1960.

Roswell Bottum, Rapid City, L. E. Schreyer, Lake Andes, for proponent and appellant.

Morgan & Fuller, Mitchell, W. C. Zeitner, Armour, for contestant and respondent.

HANSON, Judge.

The validity of an instrument purporting to be the last will and testament of Wesley Metz is involved in this appeal. Metz died in a hospital in Rapid City on November 17, 1955. The following day one Herman Imel filed decedent's will dated August 4, 1955, for probate in the County Court of Charles Mix County. The will gave $1,000 to decedent's former housekeeper, Kattie Smith, of Wagner, South Dakota. The entire remainder of the estate was bequeathed to the proponent, Herman Imel, who was also nominated as executor without bond. The will was contested in County Court by Maude Metz, a sister-in-law of the deceased. The County Court denied probate.

The proponent appealed to Circuit Court where the issues were tried de novo before the Honorable George A. Rice, acting Presiding Judge. A jury, acting in an advisory capacity, returned a verdict in favor of contestant. The Court denied probate for the reason the will was procured by the undue influence of Herman Imel. Imel appeals.

The only issue here is whether the evidence preponderates against the trial court's finding of undue influence. In reviewing the evidence in a will contest our province is the same as in any civil action. It must be reviewed in a light most favorable to the trial court's finding and all conflicts in the evidence resolved in its favor.

Influence, to be undue, must be of such character as to destroy the free agency of the testator and substitute the will of another person for his own. In re Armstrong's Estate, 65 S.D. 233, 272 N.W. 799. Its essential elements are (1) a person susceptible to such influence, (2) opportunity to exert such influence and effect the wrongful purpose, (3) a disposition to do so for an improper purpose, and (4) a result clearly showing the effect of such influence. In re Rowland's Estate, 70 S.D. 419, 18 N.W.2d 290.

The burden was on contestant to establish the undue influence of Herman Imel by a preponderance of the evidence. Ekern v. Erickson, 37 S.D. 300, 157 N.W. 1062. This burden was fulfilled to the satisfaction of the trial court. Therefore its finding of undue influence will not be disturbed unless it appears from the record there is a clear preponderance of the evidence against it. In re Peterson's Estate, S.D., 94 N.W.2d 661.

The record shows that at time of death decedent, Wesley Metz, was a single man, 86 years of age. Prior to July 12, 1955, he made his home on a farm near Wagner, in Charles Mix County. His housekeeper was Kate Smith. On July 12, 1955, Metz was in a weakened physical condition and was taken to Rapid City by the proponent, Herman Imel. Metz then owned 613 acres of land in Charles Mix County; 15 head of cattle; 2 horses; farm machinery; some chickens; and cash in the amount of $24,489.94 deposited in banks at Wagner, Armour, Delmont and Sioux City.

The proponent, Herman Imel, was born in Thompson, Illinois, on November 18, 1891. His mother's name was Emma Imel. Imel claims to be decedent's illegitimate son. He testified that Metz visited his mother at Fenton, Illinois, when he was four or five years of age. Imel never saw Metz again until 1926 when he and his wife stopped at the Metz farm while on a trip to the Black Hills. Thereafter, in 1926 and 1927, Metz visited Imel and his wife at their home in Fenton, Illinois, on several occasions, including Christmas of 1927. In March 1928 Imel and his wife moved to South Dakota and began assisting Metz with his farming operations. Imel farmed with decedent for four or five years during which time he and his family lived in a set of buildings owned by Metz and located about one mile from the Metz home. Thereafter Imel farmed for himself until 1937. Imel then went into the construction business in Mitchell. In 1945 he and his family moved to Rapid City where they have since resided.

Metz first executed a will on January 3, 1952, in the office of his attorney, W. C. Zeitner, at Armour, South Dakota. In this will Metz bequeathed the sum of $1 to Herman Floyd Imel 'who claims to be my son'. Substantial bequests were made to decedent's brother, Webster Metz; decedent's sisters, Emma Graves and Della Beeler; and numerous smaller bequests to other relatives and friends. Webster Metz was named as executor without bond. In February 1953 Webster Metz died and a codicil to the above will was executed on May 6, 1953, naming Maude Metz as executrix. Maude Metz is the contestant herein.

On September 21, 1953, Metz executed a second will in the office of attorney W. C. Zeitner. This will contains substantially the same provisions as the first except for a bequest of $8,000 to Kate Smith, who is referred to as 'my devoted housekeeper and companion for the last twenty-three years.' This will like the first bequeathed the sum of $1 to Herman Imel 'who claims to be my son'. It was stipulated that proceedings for the probate of this will should 'be held in abeyance until a final determination of the validity of the last will and testament of Wesley Metz, deceased, dated August 4th, 1955 is made * * *.'

On November 14, 1953, Imel petitioned the County Court of Charles Mix County for letters of guardianship over the person and estate of Wesley Metz. He alleged in the petition 'that the said Wesley Metz due to his advanced age and physical infirmness is incompetent and incapable of comprehending his business affairs sufficiently to properly take care of said property and business affairs, and that it is necessary, and for the benefit of and best interests of said Wesley Metz that a guardian of the person and property of said Wesley Metz be appointed * * *.' The petition was opposed by Wesley Metz in person and by his attorney, W. C. Zeitner. The County Court after hearing found Metz competent and denied the petition for letters of guardianship.

Through the years Metz corresponded and frequently visited with relatives in Illinois and Pennsylvania. While visiting his grandnephew, Milton Branthaver, in September 1954 Metz asked to see an attorney. He was taken to a Mr. Smarsh in Chambersburg, Pennsylvania. Mr. Metz inquired of this attorney how a will could be drawn which would prevent Herman Imel from getting any of his estate. He was advised to employ a competent attorney in South Dakota. A few days later Metz again conferred with attorney Smarsh with reference to this same question.

On January 18, 1955, Herman Imel again petitioned the County Court of Charles Mix County for letters of guardianship over the person and estate of Wesley Metz. In such petition Imel alleged '* * * and due to his advanced age he (Wesley Metz) has reached a mental state known as senility and that due to such condition the said party is childish and incompetent to attend to his business affairs and also due to his advanced age and the condition of his mind, is both physically and mentally incapable of caring for himself and therefore requires constant attention'. Metz again resisted the appointment of a guardianship in person and by his attorney, W. C. Zeitner. The hearing in this matter was continued over until August 1955 at which time the County Court found testator to be incompetent and appointed Maude Metz as guardian. She did not qualify and Herman Imel was subsequently appointed guardian. Metz died before Imel qualified. No transcript was made of the proceedings in County Court. However, according to Judge Melcher, Imel testified at the hearing that a guardian was necessary for the reason 'he believe (d) that Mr. Metz's property was in danger that he thought people might talk him out of it * * * that Mr. Metz was always interested in big insurance and that someone attempted to get him to sign a deed to his property under the guise of being an insurance policy.' At this same hearing Imel testified he was the son of Wesley Metz. Thereupon Metz stated in open court, 'that's a demn lie'.

About this same period of time Metz and Imel were in the bank at Wagner, South Dakota, together. They talked to Walter Frei, the president of the bank and George S. Smith, its cashier. Mr. Frei testified with reference to this meeting as follows: 'Mr. Metz came in to see me about this guardianship and spoke about it and Mr. Imel was with him. In the course of the conversation Mr. Imel made this remark--he says, 'he is my father but he denies it', and a short time after that the conversation ended the usual way, and as I remember, Mr. Imel got up and just as he went out and I think Mr. Imel might have heard it, I am not sure, Mr. Metz made this remark, 'he claims he is my son but he is not'.' George Smith, the cashier, testified that while he was waiting on Mr. Metz, Imel came over to the cashier's window and said, 'I'm his son' and Mr. Metz replied, 'He ain't no such damn thing.'

While visiting his sister, Emma Graves, in Hanover, Illinois, in February 1955, decedent fell and broke his hip. He never walked again. He was hospitalized in Illinois for a short period and returned to South Dakota in March 1955. He returned to his farm home and was cared for by his housekeeper, Kate Smith.

Following a visit on July 12th, Imel took Metz home with him to Rapid City. He was thereafter examined and treated by several doctors. He had coronary artery disease with angina pectoris, cataract of the left eye, deafness, senile ectropion bilaterally, constipation, and was still suffering from the effects of his broken hip. He was admitted to the St. John's Hospital on August 1st, where he remained until noon on August 4th. He spent the afternoon riding around town with...