Modde's Estate, Matter of

• Decision Date: 17 May 1982
• Docket Number: No. 13596,13596
• Citation: 323 N.W.2d 895
• Parties: In the Matter of the ESTATE OF Charles T. MODDE, Deceased. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 895

323 N.W.2d 895

In the Matter of the ESTATE OF Charles T. MODDE, Deceased.

No. 13596.

Supreme Court of South Dakota.

Considered on Briefs May 17, 1982.

Decided Sept. 1, 1982.

James E. McMahon of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for appellants Al Henle, James P. Henle, Janice Henle Pierce, Annette Menig, Rose Kelsheimer, Pete Modde, Mary Jordan, Mary Henle Moon, and James Modde.

Thomas J. Johnson of Quaintance, Swanson & Johnson, Sioux Falls, for appellee John Modde.

DUNN, Justice (on reassignment).

This is an appeal from the judgment of the circuit court denying Al Henle's (appellant) petition for summary administration and admitting an unsigned copy of a will of Charles T. Modde, decedent, to probate and allowing John L. Modde (appellee) to proceed with his petition for summary administration. We affirm.

Decedent died on September 23, 1978. His heirs-at-law consist of nephews, nieces, grandnephews and grandnieces. There was no signed written will found at the time of decedent's death or at any time since his death.

In 1955, decedent lived in Sioux Falls, South Dakota, as did the majority of his relatives. Decedent made three to four trips a year to Sioux City, Iowa, to visit his brother, Frank Modde, whose son is the appellee in this case. Decedent and appellee frequently hunted and fished together in the decade of the fifties.

In the winter of 1955, decedent informed appellee, who was then sixteen years of age, that he was going to make a will and leave everything he owned to appellee. Appellee testified that thereafter he received a letter from decedent stating he was having his will drawn. This letter could not be found. Soon after, appellee received in the mail a carbon copy of a will, wherein he was named the beneficiary. The copy is in typewritten carbon, except the date and the names of two witnesses, plus their addresses, which appear in original typewriting. The typewriting indicates the original will of decedent, which cannot be located, was executed April 28, 1955, and was witnessed by B. W. Phillips and E. Colleen Gillen. Phillips was an attorney in Sioux Falls and Gillen was his secretary. The line provided for the signature of the testator is blank. It is this carbon copy of the decedent's will which was presented for probate.

Decedent and Attorney Phillips were friends and often visited in Phillips' office in the mid-fifties. Phillips died in 1958. Phillips' part-time secretary, E. Colleen Gillen, worked only when called. Gillen's records show that she did work for two and one-half hours on April 28, 1955, the day the will of decedent was executed.

Although Gillen had no independent recollection of the drafting or execution of the will in question, she did testify that the production of will copies occurred in a particular fashion. The original will would be typed separately. Since the office did not have a photocopy machine, Gillen testified copies were typed using the original as a model with the required number of carbon copies being produced simultaneously. Clients did not sign the copies. After the execution of the will, the date of execution and names of the witnesses would be typed onto the carbon copies. Gillen believed the carbon copy admitted to probate was typed on Phillips' old Underwood typewriter because of certain "style of type" peculiarities ascribable to the typewriter, which appear on the carbon copy.

Gillen worked for Phillips for about two and one-half years. The office files were kept in Phillips' office and Gillen did no filing and had no knowledge of what the files contained. Gillen had no recollection of the will in question. If the will was executed by decedent, Gillen had no knowledge as to where it was kept or whether it was in existence at the time of decedent's death on September 23, 1978.

Decedent was first admitted to the Veteran's Administration Hospital in Sioux Falls in October of 1964. He was in and out of hospitals numerous times thereafter. There were numerous diagnoses made of his medical problems, one of which was described as an alcohol-related problem. In May of 1969, decedent was admitted to the Veteran's Administration Hospital in Fort Meade, South Dakota, where he remained until his death on September 23, 1978. There is nothing in the record to indicate the decedent was not capable of handling his own affairs up to November 7, 1972, when the Veteran's Administration began managing his funds.

Decedent's heirs-at-law, appellants, contend that decedent did not validly execute a written will. Appellants urge that due execution of a lost will under SDCL 30-6-26 ¹ must be proven by direct, clear and convincing evidence. In re Tjarks' Estate, 55 S.D. 636, 227 N.W. 84 (1929). We find appellant's reliance on In re Tjarks' Estate, supra, as establishing the burden of proof to be misplaced. The question of burden of proof was not discussed or mentioned by the parties in that case and thus the court's discussion of the standard was mere dicta. Moreover, a plain reading of SDCL 30-6-26 demonstrates that proof of execution and validity of a lost or destroyed will is established as prescribed in regard to proofs of wills in other cases. Thus, proof of execution and validity would be by a preponderance of the evidence or prima facie proof.

We believe sufficient testimony and circumstantial evidence was presented to convince the trial court of the fact of execution. Decedent told appellee in 1955 of his intention to leave his property to appellee. Appellee later received a letter confirming decedent's intentions. A carbon copy of decedent's will was subsequently forwarded to appellee by the decedent. One of the witnesses to the document, E. Colleen Gillen, who was also the drafting attorney's secretary, testified the type on the copy admitted for probate indicated it was typed on the attorney's typewriter. Although Gillen did not recall typing or witnessing the will, she did work on the date of execution and the memory lapse may be understandable given the twenty-six year time span. Moreover, the method of producing copies of wills demonstrates that appellee's copy could only have been completed and forwarded to him after the will was executed. We do not find the trial court's finding that decedent had validly executed a written will to be clearly erroneous.

Appellant next contends the trial court's finding that the original will of decedent was a lost will in accordance with SDCL 30-6-27 ² was clearly erroneous. In In re McCoy's Estate, 56 S.D. 279, 228 N.W. 376 (1929), this court pointed out "that in the matter of establishing a lost will there is required perhaps a stronger degree of proof than mere preponderance of the evidence." Id., 228 N.W. at 376. We agree with appellee that clear and distinct proof required by SDCL 30-6-27 applies only to proof of the will's provisions and not to proof that it was in existence at the time of the death of the testator or proof that it was fraudulently destroyed in the lifetime of the testator. Referring to an Oklahoma statute identical to SDCL 30-6-27, the high court of that state held that the requirement of proof of at least two credible witnesses applies only to the provisions of the lost will, which must be clearly and distinctly proved. The court concluded that sufficient testimony to convince the court of the fact of execution of the will or of its existence at the time of the testator's death is all that is required. Day v. Williams, 184 Okl. 117, 85 P.2d 306 (1938).

We look first to that part of SDCL 30-6-27 requiring the will be proved to be in existence at the time of the testator's death. The failure to find a will after a careful and exhaustive search raises a presumption that the testator destroyed it with the intent to revoke it. In re Bell's Estate, 13 S.D. 475, 83 N.W. 566 (1900). It is equally clear, however, that such a presumption is rebutted by evidence, circumstantial or otherwise, that after the execution of the will, it was deposited with a custodian and that the testator did not thereafter have it in his possession or have access to it. We believe there was sufficient evidence to convince the court that the will was in existence at the time of the testator's death. Here, decedent and his attorney were close personal friends and visited frequently in the attorney's office. The attorney kept his files in his personal office, did his own filing, and died approximately three years after this will was executed, leaving decedent without control of the will for nearly twenty years before his death. Moreover, nothing in the record indicates it would be out of character for decedent to leave a document of this nature with the deceased attorney for safekeeping.

We also note the appellee conducted a diligent and exhaustive search for the original last will and testament of the decedent. Appellee contacted the deceased attorney's son who referred him to the individual who apparently took over the files of Mr. Phillips upon his death. This individual was interviewed to no avail. The secretary who had worked part-time for Phillips was contacted and later testified. The possible heirs, both proponents and opponents, were found and testified. There did not appear to be any other viable contacts still alive. We also find the absence of any statement by decedent of any intent or desire to revoke or change the will to be significant. See In re Estate of Markofske, 47 Wis.2d 769, 178 N.W.2d 9 (1970).

Finally, we must be cognizant that this court has the duty to give effect to the intention of the testator as revealed by the expressions of his will when read in light of, and with the aid of, the surrounding circumstances. In re Hoisington's Estate, 67 S.D. 280, 291 N.W. 921 (1940). Here, decedent made known his intent to make appellee his beneficiary in conversations with appellee, in correspondence with him, and through the...