Nelson's Estate, Matter of

• Decision Date: 09 February 1983
• Docket Number: No. 13745,No. 13691,13691,13745
• Citation: 330 N.W.2d 151
• Parties: In the Matter of the ESTATE OF Mary O. NELSON, also known as Mary Olivia Nelson, Deceased.In the Matter of the GUARDIANSHIP OF Mary O. NELSON.
• Court: South Dakota Supreme Court

Page 151

330 N.W.2d 151

In the Matter of the ESTATE OF Mary O. NELSON, also known as

Mary Olivia Nelson, Deceased. No. 13691.

In the Matter of the GUARDIANSHIP OF Mary O. NELSON. No.

13745.

Supreme Court of South Dakota.

Argued Oct. 13, 1982.

Decided Feb. 9, 1983.

Ronald L. Haskvitz of Smith, Juster, Feikema, Malmon & Haskvitz, Minneapolis, Minn., for contestant and appellee Evelyn Sand and special administrator appellant Clifford Pearson; J. Christopher Cuneo of Smith, Juster, Feikema, Malmon & Haskvitz, Minneapolis, Minn., and David E. Gilbertson of Cameron & Gilbertson, Sisseton, on brief.

L.R. Gustafson, Britton, for proponent, guardian and appellant Allen W. Braaten.

HENDERSON, Justice.

PROCEDURAL HISTORY

This appeal stems from separate litigation arising in a guardianship proceeding (# 13745) and will contest (# 13691). We have consolidated the two appeals.

On November 24, 1970, Allen W. Braaten, proponent, was appointed the general guardian of Mary O. Nelson. Mr. Braaten served as Mrs. Nelson's guardian until her death on February 22, 1981. Mrs. Nelson died at the age of 84. On March 27, 1981, Mr. Braaten, as executor and legatee, petitioned the Circuit Court of the Fifth Judicial Circuit for probate of decedent's 1975 will. On April 9, 1981, Evelyn Sand, a niece of the deceased, contestant, filed objections and a notice of contest to the 1975 will. On April 14, 1981, Mr. Braaten, as guardian, petitioned another Fifth Judicial Circuit judge for approval of the eighth and final account of the guardianship requesting a termination and discharge of the guardianship.

A will contest was heard from September 14 through September 17, 1981, resulting in a denial of probate for the 1975 will. A special administrator, Clifford Pearson, was appointed on September 28, 1981, to preserve the assets of the estate. On October 1, 1981, Mr. Braaten motioned to reopen the will contest which motion was denied. Findings of fact and conclusions of law were entered on October 19, 1981. Mr. Braaten made a motion for new trial on October 29, 1981. This motion was denied on December 16, 1981. Mr. Braaten, proponent of the 1975 will, filed a notice of appeal to this Court on January 14, 1982.

As to the guardianship matters, a hearing was held on November 18, 1981. Mr. Braaten's final accounting was substantially approved by the trial court on January 18, 1982. The special administrator appealed to this Court on March 15, 1982. Completed briefing and filing on both cases was effected on August 19, 1982. This case was argued on October 13, 1982, at Madison, South Dakota. We affirm the denial of probate of the 1975 will (# 13691) and reverse and remand the guardianship proceeding (# 13745).

FACTS

Mrs. Nelson, an elderly widow, owned approximately 1400 acres of farmland in Roberts County, South Dakota. Her estate had a valuation of over $935,000 in 1981. Mrs. Nelson, through her attorney William J. Holland, executed wills in 1963, 1966, and 1975. The 1975 will was offered for probate and controversy swirls around its legality.

Mr. Braaten and his family lived across the road from Mrs. Nelson's home. In 1954, Mr. Braaten became a tenant on 520 acres of Mrs. Nelson's property. One-third of the proceeds from crops sold off of this rental property was to be paid to Mrs. Nelson as rent. Eventually, the remainder of Mrs. Nelson's farmland was rented on the same terms to three other tenants, one of them being Mr. Braaten's son.

Mr. Braaten helped Mrs. Nelson with transportation, repairs around the farm, and performed other sundry duties. Mr. Braaten was paid for some, but not all, of his assistance to Mrs. Nelson. In 1970, Mrs. Nelson saw Mr. Holland and told him that In September of 1970, Mrs. Nelson entered a nursing home. Dr. Joseph Kass, in his admitting evaluation of Mrs. Nelson, described her as "senile" and "senile-despondent." Records admitted into evidence establish that Mrs. Nelson's physical and mental condition deteriorated considerably in the nursing home. A daily log kept by the nursing home contains entries indicating Mrs. Nelson had increased senility (September 1972); progressively suffered from vertigo (August 1974); had dizzy spells (throughout 1973-1975); was found on numerous occasions under her bed (January 1974; June 1975); was discovered on the floor of the public restroom (June 1975); was confused regularly (throughout 1973-1975); used a type of wheelchair known as a Geri-chair (1974-1975); was recedent (throughout 1973-1975); and during July through September 1975 often smeared excrement over her body.

although she desired to remain in control of her property, the management was too cumbersome and she would like a device such as a power of attorney so Mr. Braaten could manage the property. Instead, Mr. Holland and Mr. Braaten encouraged Mrs. Nelson to petition for a general guardianship and to then enter a nursing home. The joint encouragement bore fruit. A general guardianship naming Mr. Braaten as guardian was approved on November 24, 1970. The trial court was not advised of the names of Mrs. Nelson's heirs or relatives. Notice of the guardianship was waived; therefore, Mrs. Nelson's relatives were not informed of what had transpired. It must be noted that Mr. Holland served as Mr. Braaten's attorney in 1963 when he drew a will for Mr. Braaten. In the guardianship proceeding, the trial court found that Mr. Holland was representing both Mr. Braaten and Mrs. Nelson.

Mrs. Nelson's hospital records further reflect entries bearing on a general decline in health. On an August 19-24, 1974, hospitalization, the records reflect: Mrs. Nelson was tied in her wheelchair; was in a daily state of confusion; was unable to make her mind direct her body; constantly smiled although depressed; was very confused and senile; and her communication was limited to "yes," "no," and "fine." Records of a June 30 to July 5, 1975, hospitalization reveal that Mrs. Nelson was a senile person who was in a constant state of confusion and unable to comprehend her brother's death. Finally, records of a March 3 through 25, 1976, hospitalization describe Mrs. Nelson as: incoherent; disoriented; constantly confused; unable to retain information; and unable to answer questions.

However, the witnesses to the execution of the 1975 will, although impeached, testified that Mrs. Nelson was "alert," "very friendly," "knew what she was doing," and was "in sane mind at the time."

Against this evidentiary backdrop of Mrs. Nelson's mental and physical condition, the 1975 will was drafted. On October 30, 1975, Mr. Braaten drove Mrs. Nelson to Mr. Holland's law office. Mr. Braaten remained present in the office, but did not take part, while Mrs. Nelson discussed the new will with Mr. Holland. Mrs. Nelson's 1975 will was designed to revoke her 1966 will. Provisions of the 1966 will devised 80 acres of real estate to Mr. Braaten and $1,000 to Mr. Braaten's wife. The balance of Mrs. Nelson's estate was devised to Mrs. Nelson's family and heirs.

Mrs. Nelson's 1975 will was substantially different. The 1975 will devised 480 acres of real estate and her home to Mr. Braaten plus 121 acres of real estate to Mr. Braaten's son. The remaining real estate was devised to Mrs. Nelson's family. Specific bequests totalling $33,000 were devised to several parties, and the remainder and residue of the estate valued at approximately $232,000 was devised to Mr. Braaten. When this property was devised to Mr. Braaten, he was acting as her general guardian. As executor of the 1975 will, Mr. Braaten was directed by the will to retain Mr. Holland's legal services for probate of the will. The trial court found that Attorney Holland was representing Mr. Braaten when the will in issue was prepared.

During the will contest, evidence of the above-mentioned records was introduced to Witnesses testified on proponent's behalf to establish the validity of the making and execution of the will. However, contestant extensively cross-examined and impeached proponent's witnesses. Witnesses to the execution of the will were effectively impeached. The subscribing witnesses were unable to provide the testimony required to support proponent's claim that Mrs. Nelson was competent to sign a will. Their testimony was contradictory. The trial court found that the subscribing witnesses did not understand their duty to be swearing to Mary O. Nelson's competency, but rather only to observe her sign the will; neither could recall being sworn before signing the attestation clause and Maureen Simonson said it was possible that they signed before Mary O. Nelson.

substantiate contestant's claims of undue influence and lack of testamentary capacity.

At the conclusion of the will contest, findings of fact and conclusions of law were entered by the trial court. To summarize the holding, the trial court held that testamentary capacity was lacking; undue influence had been established; the will would not be admitted to probate; and Mr. Braaten was dismissed hence so that a special administrator could replace him. Mr. Braaten then attempted to reopen the contest and obtain a new trial; however, both motions were denied.

As to the guardianship, Mr. Braaten did not file his first accounting with the trial court until April of 1974. Eventually, a total of eight accountings were filed by Mr. Braaten. Seven of the accountings were approved by the trial court without notice or contest. However, the eighth and final account, which covered January 1, 1980, through February 22, 1981, was contested by the special administrator.

Mr. Braaten was the only witness at the hearing. Documentary evidence consisted of a handwritten compilation of expenses drafted by Mr. Braaten's son, deposit slips to show income, and cancelled checks to show expenditures. No other records or receipts were introduced. As for income, there was evidence to establish that rent, as crop proceeds, was collected from Mrs. Nelson's...